March 16, 2004



The Henderson County Planning Board met on March 16, 2003, for its regular meeting at 7:03 p.m. in the Meeting Room of the Henderson County Land Development Building, 101 East Allen Street, Hendersonville, NC.  Board members present were Tedd Pearce, Chairman, Leon Allison, Paul Patterson, Mike Cooper, Vivian Armstrong, Tommy Laughter and Todd Thompson.  Others present included Derrick Cook, Planner; Karen C. Smith, Planning Director; Russell Burrell, Assistant County Attorney and Kathleen Scanlan, Secretary.   Board members Cindy Dabaibeh and Vice-Chairman Walter Carpenter were absent.


Approval of Minutes.  Chairman Pearce presided over the meeting and called the meeting to order.  He asked for the approval of the February 3, 2004 minutes of the special called meeting.  Chairman Pearce made a motion to approve the minutes and Leon Allison seconded the motion.  All members voted in favor.  Chairman Pearce then asked for the approval of the regular meeting minutes of February 17, 2004 and made a motion for approval.  Paul Patterson seconded the motion and all members voted in favor. 


Adjustment of Agenda.  There were no adjustments to the agenda to be made.


Staff Reports.  Ms. Smith said that the Board of Commissioners scheduled a public hearing on the motocross special use permit and variances for April 1, 2004 at 6:00 p.m. at West Henderson High School.  She said that she had mentioned to the Board of Commissioners the part of the Planning Board’s motion regarding the Board of Commissioners looking at the definition of motor sports facility but that the Commissioners did not give any direction at this point.  Ms. Smith reminded the Board members that the next joint CCP meeting would be Tuesday, March 23, 2004 at 4:00 p.m.




Status Report on Planning Initiatives – Planning Staff.  Ms. Smith stated that there was an update at the last joint meeting.  She said that Mr. Harvey of CMR Services, Inc., sent a revised draft of the policy statements and recommendations and she said that they have been reviewed and Staff will send comments back to him this week.  She said there might be something at the Board’s April Planning Board meeting regarding this.  She said that he plans to come up again to review the latest status of his study. 




The Homestead at Mills River (File 3 03-M15) – Revised Master Plan and Phase I Development Plan Review for Property Located off Whitaker Road – (158 Lots Total, 63 Lots in Phase I) – Terry Baker, Agent for The Homestead at Mills River, LLC, Owner.  Mr. Cook stated that in the original application, they had 160 lots and with this revised application, there is a reduction to 158 lots on a total of 262.80 acres.  He said that the property is located in the Open Use zoning district and a WS-II Water Supply Watershed district and they will be proposing private roads and individual wells and septic tanks to serve the proposed lots.  Mr. Cook said that what has been changed within the Plan with Phase I, is there have been adjustments to the road system, and he showed on the map the new road design and lot configurations.  He mentioned that they have created a new phase for the project, indicated as Phase I-A.  He stated that in the technical and procedural comments, all requirements were satisfied regarding the Master Plan.  Mr. Cook stated that regarding the Development Plan, his comments were as follows:


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 repaired prior to beginning construction (HCSO Section 170-19).


2.      Erosion Control Plans for Individual Lots.  Per the applicant’s written request to the Planning Board, all persons building homes in this 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.


3.      Perennial Stream and Buffer Area.  The applicant has acknowledged on the Development Plan the 30-foot building setback from perennial streams required by Section 170-37A of the Subdivision and such setback must be noted on the Final Plat (HCSO Appendix 7).


4.      Private Roads.  Based on the applicant’s road profile, it looks that all roads in the subdivision will be built to private collector road standards, except the main entrance right-of-way of the proposed subdivision.  However on a revised Phase I development plan, the applicant should specifically state with the road cross-section illustrated on the Development Plan what road type will be built in the proposed subdivision, private collector road, etc., before any construction occurs (HCSO Section 170-21, Appendix 5).  Mr. Cook stated that based on the sketch plan, it looks like they are building the subdivision to collector road standards, but it needs to be specifically specified. 


5.      Private Roads.  Private roads are shown and therefore 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 of the HCSO).


6.      Road Grade.  The applicant on the proposed subdivision road profile gives the approximate finished road grades of each proposed road.  The application states on the revised Phase I Development Plan no road grade will exceed 18%.  If the applicant is building all roads to paved private collector road standards, then on the Final Plat road grades would need to be certified at no greater than 16% grade and a note on a revised Phase I Development Plan should be provided stating that the road grades will not exceed 16% prior to any construction (HCSO 170-21 Table 1 and Appendix 7).


7.      Project Phases.  Mr. Cook stated that on the first review, the Planning Board indicated that they would like the subsequent phases reviewed by the Planning Board.  He suggested that Phase I-A could be approved administratively.


8.      Common Area.  Mr. Cook stated that on this specific application, the applicant does not provide the specific acreage of the common area, but on the original application it was indicated as 5.9 acres of common area.  He stated that this would need to be indicated on the Final Plat, as would the uses for the common area.  He mentioned that applicable zoning and watershed issues would need to be addressed.

9.      Compliance with other provisions.  Mr. Cook stated that the subdivision is located in a Water Supply Watershed II area and the lot size required per dwelling unit is 40,000 square feet and Mr. Cook said that the lots exceed that on almost every lot that the developer has proposed.  Mr. Cook stated that the Watershed Ordinance required a minimum 30-foot vegetative buffer for development activities along all perennial streams, except for development using the special intensity allocation provision of the Ordinance, which must provide a 100-foot vegetative buffer along perennial streams.  He stated that the applicant also might want to address what measures they have looked at in trying minimize the impact to the environment with their subdivision.


Mr. Cook stated that with regard to other comments, Staff did waive certain requirements such as a new application, agent form, and farmland preservation form, due to the recent review of this Plan.  Mr. Cook noted that the applicant reported that they have consulted with different agencies about the impact that the land may have on the environment and the applicant may want to address this issue.  He also said another point deals with the Master Plan, which in Phase II specifically dealt with lot 158, as the applicant sold this lot without going through the appropriate subdivision process and thereby creating an alleged subdivision violation.  Mr. Cook stated that Staff has requested that the applicant take steps to rectify this situation and he referred to a letter, which the Planning Board received in their packets, explaining the specifics of this issue.  He said that action by the Board on the current application, does not affect the conditional approval of their original application.  Ms. Smith asked Mr. Cook whether he addressed in his comments all of the conditions the Planning Board imposed on the last approval.  Mr. Cook said that he had. 


Ms. Armstrong asked whether the new owner of Lot 158 was a party to this application now, as a property owner?  Mr. Cook said that for the procedures we are doing right now, no, because we are specifically dealing with Phase I.  Mr. Cook asked if she was asking if he had filled out an application for the review process and put his name on it as the owner of the property now?  Mr. Russell Burrell, Assistant County Attorney, said that if the owner of Lot 158 is here tonight the Board might want to deal with this issue.  Ms. Armstrong asked, regarding Condition 2, Erosion Control Plans for Individual Lots, who is responsible for monitoring compliance with those plans?  Mr. Cook said that it has submitted as a condition by the applicant, but he said that he does not know whether Staff has authorization to oversee that.  Chairman Pearce added that the subdivision will have a soil and erosion control permit for the entire subdivision and they are individually liable for what happens on every lot as it is under construction, as the subdivision is responsible with their permitting process and they can be fined.  As far as the approval process and the many concerns about soil and erosion in this area, Chairman Pearce said it was suggested and the developer actually agreed to make it part of the approval process that each individual lot would have to have an engineered soil and erosion control plan on their lot.  Ms. Armstrong asked, “Who, then, monitors compliance of those, would it be the Watershed Administrator?”  Chairman Pearce said that the Watershed Administrator will not be monitoring it individually, but if there were a violation, the subdivision would be liable.  He said that he assumes that the subdivision’s engineers would be involved with this, but we have not received the wording of the covenant regarding this erosion control plan, so we do not know how they are administrating it internally.  Mr. Cooper said that after they sell a lot to a private home owner, if they do not disturb more than one acre of land, it does not require them to have a soil and erosion control plan, but the covenants under this will require it as the owners have agreed to do this and it is above and beyond what the law requires.  Mr. Cooper said that if there is a complaint, the Department of Environment and Natural Resources will go out and investigate the complaint and then take action, but until there is a complaint there is nothing that has to be done.  Mr. Patterson said that unless the developer is building on those lots, they are not responsible, but once it is sold to a private individual, it is their responsibility and they will have to get the erosion control permit to submit to the developer or his engineers and they will be the responsible party and if they do not conform to it, then they will bring in the Department of Environment and Natural Resources on the issue.  Mr. Patterson said that unless the subdivider is doing the grading and building on the lot, then he is not responsible.   Mr. Allison said by changing this road, it will have a lesser impact than originally approved.  Ms. Armstrong said that under Staff Recommendations, it states “...the submittal may satisfactorily address the technical requirements of the Henderson County Subdivision Ordinance,” and she asked, “does it or not? Ms. Smith said that it is the same comment as the last time and is subject to the applicant speaking to the Board about some of the conditions Staff has addressed.


Mr. Perry Davis with Cape Fear Engineering said that his company did the civil engineering on the project and added that with him tonight is Scott McElrath, owner of the subdivision, Terry Baker, surveyor for the project and several others with Cape Fear Engineering.   He said that once the first plan was approved, they went out and staked the roads and the lots and had to make some shifts and changes to the roads so that the lots were more sellable, easier to access and easier to build.  The changes also lessened the environmental impact of the project.  He said that they shifted the road away from the creek to give more space between it and the creek and by doing so, they lost about three lots in this section.  He said that all of the changes were positive and reduced the cut and fill and earth work that they had to do and, in doing so, created lots with more value and that are easier to build upon and created generally a more environmentally friendly subdivision.  He said that the developer felt that it was best to come before the Board with these revisions and ask for approval.  He said that they could build the original one, but prefer to build this revised version.  Chairman Pearce asked whether the roads would be private collector roads?  Mr. Davis said that they will be private roads and it depends on the number of lots they will serve when the split happens as to whether they will be residential or collector roads.  Chairman Pearce said that they would have various road configurations based upon the Staff memo.  Ms. Smith said that this would need to be noted on the revised plan for Phase 1.  Mr. Terry Baker said that the cross-sections will not change with the local roads and all of them will be 18 feet wide with curb and gutter on all.  He said that they could distinguish on the plat which ones will be local and which ones will be collector, as the number of lots dictate that and they can note that.  Chairman Pearce asked whether the acreage for the common area has changed?  Mr. Baker said that it is still the same, 5.9 acres, and that they just did not note that on the plat.  Mr. Patterson asked whether it would be valley gutters or curb and gutter?  Mr. Davis said that it is valley curb and gutter, which is concrete.  Mr. Patterson said that on the entrance road there is shown a sixty-foot right-of-way, but there is a section that is a forty-five foot cut, and he questioned that it will fit in the sixty-foot right-of-way?  Mr. Davis said that they have grading rights to go outside of that.  Mr. Patterson said that the plans do not exactly meet the requirements set forth for private roads by Henderson County standards.  Mr. Patterson noted that the site distance on vertical curves is 150 feet and the standard has not been met.  He said that the last time they came before the Board, the Board required that either the surveyor or a an engineer sign the plat certifying that all of the roads meet Henderson County standards, and he feels that they do not.  He wanted the applicant to be forewarned.  Mr. Davis said that the plans are always a work in progress.  Mr. Tommy Laughter said that they have been talking with regard to what types of roads they plan to use that it depends on the number of lots on that road and asked, what is the basis for that?  Chairman Pearce said in Section 170-21 of the Henderson County Subdivision Ordinance, there is a table that describes the types of road classifications and requirements for each.  He said according to the table, the number of residential units served for collector roads would be twenty-five or more.  Ms. Smith stated that there are two conditions from last time that are not stated in the memo.  Mr. Cook stated the two conditions from last time’s approval.  He said that condition # 10 said, The Applicant stated that Hall Road and Old Homeplace Road would not be used for construction vehicles except for small repair vehicles accessing the old Clodfelter home and the other condition, # 11, as per what Mr. Patterson had stated, That an engineer or surveyor must certify on the Final Plat that roads comply with the Henderson County Subdivision Ordinance road standards.  Chairman Pearce said that with the Board’s approval, he would like these two conditions added to the list of standards for the approval this time.  Mr. Cook stated that condition # 5 from last time read:  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 1˝: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 ˝ 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).  Chairman Pearce felt that this should also be added to the list as a condition for the approval as a revision to the present condition # 4 dealing with private roads.


Mr. Davis noted that they have tried to reduce the cut and fill slope so they won’t need the 1 ˝; 1 but said they might need it in a few places.  Mr. Patterson said there is a note regarding that the survey needs to add to the Final Plat a note that road grades would not exceed 18% and he does not feel that it is applicable in this case as most of the roads are collector roads and are 16%.  Chairman Pearce said that in condition # 6, it does state 16% and 18%, as some of the roads are not collector roads.  Mr. Patterson said that he feels this could be handled by stating that it meets all Henderson County road standards both in grade, horizontally and vertically.  Ms. Smith asked Mr. Davis whether there would be a chance of them building a road that would have been a local road to collector road standards but where they would need the 18% grade allowed for local roads?  Mr. Davis said that he would have to look at the plans, but he doesn’t feel they will have 18% grade.  Ms. Smith asked whether they would be able to make a 16% road grade?  Mr. Davis said yes, but that they would like to have the flexibility of 16 or 18% grade. 


Ms. Armstrong said that the Staff report suggests that the applicant address the measures that would be taken to insure that the development adheres to the Watershed Ordinance.  Mr. Davis said that by providing lots greater than 40,000 square feet outside of the right-of-way, it adheres to the Watershed Ordinance.  He said that all of their lots are at least an acre, which is larger than 40,000 square feet.  Mr. Cook said that at the last meeting regarding this subdivision he said the watershed rules are a tool to help with the environmental impact and he said he really wanted to hear what the developer has to say in regards to trying to curtail the impact that they might have.  Chairman Pearce asked that if the Board approves this subdivision, are all of the prior testimony and all of the prior agreements that are written in on the original approval gone and these are the only new conditions we have?  Ms. Smith said that if the Board wants to be extra careful, it could roll all of this together with the other conditions listed.  Chairman Pearce said that it would cover all of the erosion control issues that they had.  Mr. Davis said that they have an approved erosion control plan for Phase 1 and the erosion control is performance oriented, so he said they would do the best they possibly can to set up monitoring stations throughout the property.  He said they are taking extra precautions to protect these streams and waters and the watershed area and that is the reason why they wanted to use the curb and gutter. He said that they do not have the roadside swales nor do they have the problem with the erosion.  He said that their contractor, as they build this project, is a “turn-key” contractor and builds everything as they go.  He said that one of their conditions in their erosion control permit is that they are limited to 3,000 feet of roadway disturbance at a time.  He said that they need to start at their sediment ponds and work their way out, so that all of the water from their disturbed area has to go to the ponds and be treated.  He added that the state had a lot of conditions that were placed on their permit.  Mr. Davis said that he met with the State and said that one of the conditions was that we would not submit Phase 2 or Phase 3 until these things were met. 


Chairman Pearce asked Mr. Steve Hedden to come before the Board at this time.  Chairman Pearce asked Mr. Hedden whether he owns what is designated as Phase 1-A on the revised plan, which was previously Lot 158?  Mr. Hedden said that was correct.  Chairman Pearce asked whether he realized what the developers are doing with this project and what is transpiring here at this meeting and whether he was aware that Phase 1-A will be considered a separate phase of this subdivision?  Mr. Hedden said that this is his understanding.  Chairman Pearce asked whether he is in agreement with that and supports what the developers are doing?  Mr. Hedden said yes. 


Chairman Pearce asked what road would Lot 25 be served from?  Mr. Baker said “whichever” and that both roads would end up being collector roads (Shining Rock Path and Mills River Way).  Chairman Pearce asked Mr. Burrell to give the Board the language to use as Condition # 10 for the motion.  Mr. Burrell stated, “Further it is required that except as expressly modified hereby, the developer shall comply with all requirements and conditions contained in the Board’s October 21, 2003 approval of the Master Plan and Phase 1 of the Development Plan for the Homestead at Mills River.”  Mr. Burrell said that this would incorporate everything that the Board has required of the developers before.  Chairman Pearce wanted to know whether the Board should make this their only condition, if we approve the subdivision?  Ms. Smith stated, what about the condition (#7) regarding project phases, which deals with Phase 1-A and whether that should go to Staff or back to the Planning Board? 


Chairman Pearce moved that the Planning Board find and conclude that the revised Master Plan and revised Phase 1 Development Plan submitted for The Homestead at Mills River subdivision comply with the provisions of the Subdivision Ordinance except for Condition # 7, regarding project phases and the statement from Mr. Burrell, which states:  “Further it is required that except as expressly modified hereby, the developer shall comply with all requirements and conditions contained in the Board’s October 21, 2003 approval of the Master Plan and Phase 1 of the Development Plan for the Homestead at Mills River” and referred to as Condition # 10, which completely brings in all previous conditions.   Chairman Pearce said that he is concerned since these have been slightly reworded, but he doesn’t feel that the rewording makes them anymore, if anything, less enforcing.  Ms. Smith said that if Mr. Burrell feels that this will cover it, it is fine with her.  Mr. Burrell said that this would incorporate everything that was said previously.  Chairman Pearce further moved that the revised Master Plan and the revised Phase 1 Development Plan be approved subject to all of the conditions from the October 21, 2003 approval (per Mr. Burrell’s statement) and he added that regarding Condition # 7, the Planning Board specifically allows administrative approval of Phase 1-A.  Ms. Smith said that from the way they were talking with that situation, it would end up being a flag lot and therefore there would be no new road construction, but if that changes, then Staff would need to have that come back to the Planning Board.  She said to Staff it seemed like an acceptable solution because it gives Mr. Hedden what he has and ultimately from his deed, Mr. Hedden will be able to use the other roads in the development.  Chairman Pearce said that a new deed would need to be exchanged and in Staff’s letter to them.  Ms. Smith said that this would be discussed.  Mike Cooper seconded the motion.  Ms. Armstrong asked Staff whether the expression of “may satisfactorily address the technical requirements of the Henderson County Subdivision Ordinance” come out now from the Staff recommendation statement based on what has been heard by the applicant?  Mr. Cooper said that provided they get all the conditions met that the Board has discussed.  Ms. Smith added that provided that those conditions are met.  Mr. Cook stated that he was indifferent about this issue.  Ms. Armstrong wanted to know whether anyone had signed up under public input regarding this issue?  Chairman Pearce asked if there is anyone who wants to give public comment regarding this subdivision? 


Public Input.


Mr. Ron Thompson asked where are the utilities actually going to come from that will feed the Homestead at Mills River subdivision?  Mr. Scott McElrath, owner of the development, said that the utilities are coming up on the side of the road.  Mr. Thompson asked whether he has talked with Duke Power on the plan?  Mr. McElrath said that he had not, but knows how they will be entering into the proposed subdivision and that Duke Power has their plan and that it is in their process.  Mr. Thompson said that Duke Power has a right-of-way into his property and as easements go, it is very vague.


All Board members voted on the motion.  There were six for the motion (Tommy Laughter, Leon Allison, Vivian Armstrong, Mike Cooper, Todd Thompson, and Tedd Pearce) and one opposed the motion, Mr. Paul Patterson.  The motion carried.   


Fox Glen (File # 04-M-02) – Master Plan and Phase I Development Plan Review for Property Located off Howard Gap Road – (78 Lots Total, 36 Lots in Phase I) – Gaston Campano, Agent for Glad Land Fund, LLC, Owner.   Mr. Cook stated that the property is a 47.13-acre tract located off Howard Gap Road. The application is for a major residential subdivision containing multi-family units coupled with single-family units, a small commercial area, and open space. The proposed development is for a total of 198 units with 100 apartments, 22 townhome lots, 40 villa home lots, and 36 cottage lots, totaling 98 lots. The proposed subdivision would be completed in three phases.  Phase I consists of 36 lots on 23.63-arces, which includes the 34 villa homes lots as well as 1 proposed apartment lot and 1 commercial development lot. The apartment and commercial areas are indicated on the Master Plan but are reflected as lots for future development on the Phase I Development Plan. The development is located in an Open Use zoning district and private roads coupled with public water and public sewer will serve the project.   Mr. Cook stated that on the Development Plan it indicates that two lots are for future development, one is for the apartment complex and the other is for the commercial lot.  Mike Cooper said he feels it is really 99 lots, if the apartments are on one lot.  Mr. Luther Smith, agent for the project, said that it is actually 100 lots as they are proposing 198 units and of that 198 units 98 units are residential lots, 1 lot is for the apartments and the other lot is for commercial use which makes up a total of 100 lots. 


Staff has reviewed the Master Plan and Phase I Development Plan for conformance with the Henderson County Subdivision Ordinance and offers the following comments on the Master Plan:


Mr. Cook stated that the Master Plan Phase 1 area does not match the Phase 1 Development Plan. The Master Plan shows a cul-de-sac and 40 lots for the Phase 1 area. The Master Plan shows 40 villa lots and a cul-de-sac between lots 1 and 40 abutting an open space lot. The proposed Phase 1 Development shows 36 villa lots, lots 1 and 2 designated as future development, which reduces the lots to 34, and the removal of the cul-de-sac between lots 1 and 40.  Mr. Cook said that essentially these are the changes they have made regarding the Development Plan.  Mr. Cook said that the Applicant submitted a revised Master Plan received on March 9, 2004 and because the revised Master Plan was received after the deadline for submittal of plans for review at the March 16, 2004 Planning Board meeting, Staff has not provided that plan. The Planning Board has the option to request to review it.  Ms. Smith said that if the Board approves a Master Plan but they make changes to the Master Plan that would increase the number of units, make a substantial change to the road, build in areas that were shown as common areas, etc., then these type of changes would have to come back to the Planning Board as a revised Master Plan.  Staff does have approval authority, and looking at the changes that they have made, Staff doesn’t feel that they are substantial changes but Staff wanted the Planning Board to be aware of the changes.  Chairman Pearce said that in this case, it is a reduction of lots not an increase of lots.  If they had an increase in lots the Board would need to ask for a revised Master Plan that matched the Development Plan. 


Mr. Cook stated that under the Development Plan, he had the following comments:


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


2.                  Farmland Preservation – The applicant provided the Affidavit of Understanding of Farmland Preservation District.  On the Final Plat, a statement should be noted saying the subdivision lies within ˝ mile of the Lower Hoopers Creek Farmland Preservation District (HCSO § 170-35 and Appendix 7).


3.                  Road Grade - The applicant has provided the approximate road grade for the proposed roads. On the Final Plat, conformance with the road grade standards of the NCDOT will need to be certified (HCSO § 170-21 Table 1, 170-21E).


4.                  Public Roads – Since the applicant has proposed public roads to serve the development, on the Final Plat the Applicant should have an NCDOT Engineer’s seal with signature acknowledging that the proposed road design meets NCDOT standards (Appendix 7).


5.                  Common Area/Open Space – The applicant has proposed 22.62 acres of the entire Fox Glen project as common area and open space. Future structures on the common area must meet the applicable zoning or other ordinance requirements. Such special use lots must be clearly identified for their designated use on the Final Plat (HCSO § 170-31B). 


6.                  Water and Sewer Supply – The Applicant has provided Staff a letter to the City of

Hendersonville Water and Sewer Department concerning water capacity and service to the proposed subdivision. The Applicant also has submitted a letter to the Cane Creek Water and Sewer District (Henderson County) regarding sewer capacity and service for the proposed subdivision. Mr. Cook stated that at this time, Staff has received the letter of capacity from the City of Hendersonville from the applicant but regarding the sewer situation, that letter is pending.  He said that Staff had the option to waive this requirement or not, and Staff did not waive this because it did not see sufficient reason at that time.  Based on the information supplied since then, Staff still will not waive that requirement because there are certain issues that Staff believes the applicant has to address what they need to do in regards to sewer.  He said that he wrote on his memo that the Board had the discretion to conditionally approve the subdivision subject to submittal of the sewer capacity letter but based on Staff’s review and discussion, that is not necessarily the case under the Staff’s County Ordinance.  Ms. Smith said that in the Ordinance, there is two sections related to the water and sewer in Appendix 7 the Development Plan requirements.  Under “Other Development Plan Application Requirements,” it says, “the following information and/or other items shall be provided or otherwise addressed in writing by the submittal deadline of the application for Development Plan approval unless not applicable or specifically waived by the Subdivision Administrator, otherwise the application will be considered incomplete and will not be presented to the Planning Board.”  She said that the one that deals with the allocation is, “where connection to a public or community water and/or sewer system is required or otherwise proposed, the applicant shall submit a letter from the appropriate review authorities for the water and/or sewer system indicating that water and/or sewer system has sufficient capacity for the proposed development.”  She said that the one that the Planning Board can use to conditionally approve plans is, “Final approval of plans for proposed water and sewer systems and approval of intermediate water and sewer system to be used, if applicable.”  She said these are the ones that either has to be provided by the deadline or the Planning Board can conditionally approve it.  She said that there are three water and sewer items, two of them the Board can use to offer conditional approval and other one was supposed to have been met when Staff got the application, and therefore, this application is not complete.


Chairman Pearce asked Ms. Smith to brief the Board regarding the vested rights issue.  Ms. Smith stated that Fox Glen proposed subdivision has gone before the Board of Commissioners regarding vested rights through the Vested Rights Ordinance.  She said that this Ordinance outlines the procedure that a property owner/developer can go through in order to guarantee the ability to develop a project as planned regardless of a change in zoning regulations.  She said that at present, the property is zoned Open Use.  She added that the property is within the US 25 North study corridor and zoning changes are not necessarily pending tomorrow on that but there is a possibility that zoning could change while they are in the midst of this project.  She said that the procedure under the ordinance for vested rights requires that the developer submit a site-specific development plan and have a public hearing before the Board of Commissioners.  The Commissioners will issue a decision and an order, which outlines what they are actually granting the vested rights approval on.  As part of that approval, it will be acknowledged that the Planning Board has approval authority for the subdivision component and any conditions that the Planning Board imposes will be wrapped in to any approval that the Commissioners make.  The Commissioners can make additional conditions, if the applicant agrees.  She said that a vested right under that ordinance could be granted for two years and up to five years if the applicant demonstrates, based on market conditions, that it needs that much time.  She said that it is possible that they could start pulling building permits and recording final plats within that two to five year period and there might be some overlap time with the subdivision approval.  Ms. Smith said that the hearing started in January 2004 and got continued and delayed, but the next time it will come before the Commissioners, will be March 22, 2004.  Chairman Pearce asked if Staff has received water and sewer capacity letters from Cane Creek and City of Hendersonville?  Mr. Cook stated that Staff has the water capacity letter from the City of Hendersonville, but not the sewer letter from Cane Creek.  Mr. Cooper stated that he knows that the line is a force-main and the public school system paid to put that line in, but he wanted to know whether it is a public or private line?  Luther Smith said that he would address this. 


Mr. Cook said that the last condition is regarding future development. 


7.                  Future Development – Mr. Cook stated that regarding future development, the applicant has classified future development as areas showed on the Master Plan as being where the apartments would be located and where there is a lot for commercial and an office for the development.  Mr. Cook stated if they did not put those apartments there and divided up this land for lots, it would need to come back to the Planning Board for review and approval.  He said that as it stands, the apartment complex does not fall within the Planning Board’s approval authorities and they can move forward with that.  He said that Staff discussed with Luther Smith the commercial lot.  Mr. Smith said that, technically, it is not a commercial lot and he felt that he did not need to disclose what they were using that lot for, as the Ordinance reads, and he wondered why the buffer requirement had been brought up for that.  Mr. Cook said that technically Mr. Smith is correct and when he came to Staff with the subdivision application, he did not have to disclose what he plans to do with the land.  Mr. Cook felt that with dissimilar uses and that it was disclosed as commercial use, he felt that the Planning Board needed to discuss it.  Chairman Pearce said that he feels that when one person owns the entire subdivision, the marketing of it will most likely dictate how he handles that particular commercial site and how he buffers it all around the property.  He said that he does not necessarily feel that the Board has the right to do or not to do it, but he doesn’t feel that the Board has forgone its right to do it just because the developer didn’t have to disclose what it was going to be.  Mr. Allison said that if one developer owns the whole property, he would not request a buffer.  Chairman Pearce agreed, but the Board still has the right to require a buffer, if it chose to. 


Luther Smith, who is a planner and landscape architect speaking on behalf of the owner, Glade Land Fund, LLC, said that regarding the issue of the sewer, they had run into something that had never existed before and that is that no one had ever asked Cane Creek Water and Sewer, nor has there been a subdivision in that area that has been required to ask Cane Creek Water and Sewer, for a capacity letter and there was no mechanism for Cane Creek to give them one.  He said that their only recourse is to fill out an application and submit a fee of $ 150.00 per unit, then Cane Creek will process the application and tell the owner at some point in time whether they have capacity or do not have capacity.  Mr. Smith said that they are at a point where they need to move forward with this one way or the other.  He said that this does not exist with the Mud Creek area or with the City of Hendersonville.  The engineer, John Jeter, had submitted a letter sometime ago and has been waiting for some type of understanding of how the project can have capacity.  Mr. Smith said that they are talking about a stand-alone system and are not talking about tying into the line from the school.  Mike Cooper asked whether a new force main is going to be run all the way down?  Mr. Smith said that that is the plan and this is the dilemma that they are in right now.  Chairman Pearce asked whether Fletcher has a requirement, as Cane Creek serves other subdivisions in the Fletcher area?  He feels that this should be a standard issue in a subdivision ordinance.  Gaston Campano, agent for Glade Land Fund, LLC, said that he wants to clarify that they are not looking to not do this and would be happy to receive the capacity letter, but they would like to know that this subdivision works as it is and it can be built and would like the Planning Board to give them an approval subject to them getting a capacity letter.  Mr. Campano feels that paying $ 30,000.00 ahead of time is not desirable, but he would agree with having the Planning Board consider making this issue as a condition and they will go through the proper process.  Mr. Allison added that the developers could not develop this subdivision without that capacity letter.  Mr. Smith said that he just received this information late this afternoon and they had sent the original request over a month ago.  Paul Patterson gave a scenario regarding allocation of sewer capacity and paying in order to reserve it.    Mr. Campano said they are willing to go through that process and pay for it, but they usually know what they are paying for because they usually have some type of approval in place subject to it and all of the pieces are then in place.  They then pay the money, they get the allocation and get the final sign-off and then start the process, which he feels is the way it should work.  Ms. Smith said she wanted the Planning Board to know that Staff was not overlooking a requirement in the Ordinance as to what can come to the Planning Board because Staff and the Board have had these discussions before when applications have come before the Board that have been incomplete and this is one we discovered at the last minute and maybe it should have been held back but Staff wanted to disclose that to the Board because Staff was caught by the language in the Ordinance.  Chairman Pearce said that if Staff had asked him whether this should have come forward to the Board, he would have said send it forward on the sewer but he felt Staff should have had the letter for the water at the time of the application.  Chairman Pearce said that the Board could table this for thirty days because of the water, but he feels that regarding the sewer portion, the Board needs to go forward with the condition.  Luther Smith said that regarding the water, they did provide with the application the engineer’s letters to the water and sewer systems.  Chairman Pearce said that this would not be any evidence that the project has capacity, just evidence that you sent a letter to them.  Mr. Smith said that with regard to the other issues, there should be no problems with any of the issues.  Mr. Smith said that regarding the commercial issue, it is a commercial lot, but it is in a residential subdivision.  He said that he originally provided the Staff the Master Plan that was submitted to the Board of Commissioners regarding the vested rights issue.  He said that they did some modifications to the first section and provided Staff with an updated Master Plan.  He said that if they come in with another section, they could then modify the Master Plan at that time.  Ms. Armstrong asked, “Is it your intention to design the capacity of the sewer to just serve this project?”  Mr. Smith said yes, at this point in time.  Ms. Armstrong said that she asked this as the next subdivision on the agenda is across the street and has wells and septic system.  Mr. Thompson asked whether it would be a private sewer line?  Mr. Smith said yes, it would be a private line unless the County decides that they want to take over the system.  Mr. Cooper said that if it were a private line, would the property owner not have to get rights-of-way from every property owner down that road?  Mr. Smith said that they would need to get it from NCDOT.  Mr. Cooper asked if they get it from NCDOT, would it be a public force main?  Mr. Smith said no.  Mr. Smith said that regarding the soil and erosion control plan issue; they have not received the letter of receipt and are waiting for a letter of approval, noting a change in Staff at DENR has led to the delay.  Mr. Patterson asked what the right-of-way is on Howard Gap Road?  Mr. Smith said that they are giving up from the centerline of the road and showing thirty feet on their side.  Mr. Patterson asked if there was any recorded right-of-way?  Mr. Smith said that he did not know.  Mr. Patterson said that since the Development Plan changed significantly in the section where the villas are going to go, he says that he reads that they will be building the roads to NCDOT standards, but the roads do not look like any kind of NCDOT standards with the ninety-degree intersections.  Mr. Patterson asked whether there is anything preliminary saying that this meets NCDOT standards?  Chairman Pearce said that condition # 4 says that NCDOT needs to acknowledge that the proposed road design meets their standards.  Mr. Patterson asked, “At what point in time do we put that down because if it doesn’t work, how will they be able to put a radius in there and serve lot numbers 8 and 9 due to the way the frontage will be?”  Chairman Pearce said they couldn’t develop it until they receive approval.  Ms. Smith said you do not get a sign off from NCDOT until the Final Plat.  After some further discussion regarding this issue, Chairman Pearce feels that this requirement should be discussed when the Subdivision Issues Subcommittee meets the next time because at present the requirement states at the time of the Final Plat, which could be too late.  Mr. Patterson had some technical questions regarding drainage that he directed to Mr. Smith.  Ms. Armstrong asked, “What should come first, the vested rights hearing or the plan approval?”  Ms. Smith said that it really doesn’t matter as this does not give them a vested right but it might give them some rights that they could claim under a common law vested right, but that they are two different vested rights.  Ms. Armstrong asked that the proceeding may result in changes of the subdivision process, is that correct?  Ms. Smith said she does not know yet and wanted to leave that possibility open because the Board of Commissioners will base its decision on what they hear at the quasi-judicial hearing.  The Commissioners may ask the developer to do some adjustments that might require some adjustments to the Master Plan, which would need to come back to the Planning Board.  Mr. Allison said that by having this first and then going to the Board of Commissioners, Staff could present to the Commissioners that the Planning Board has looked at the plans and said that it was an acceptable subdivision.  Ms. Armstrong said that there is nothing that the Planning Board could do here except make it easier for the developer for their hearing on March 22, 2004.  Ms. Smith said that is true and added that she will be testifying about the Planning Board’s resulting conditions and if it imposed the buffer requirement on the commercial lot, that might be more than what the Commissioners may have done, but the Commissioners could also impose a buffer or some type of landscaping standard that the Planning Board has no control over.  She said that the Commissioners have more control over the apartment development and the commercial development.  She said that Mr. Campano had addressed to the Commissioners some issues dealing with what they will sell at the commercial enterprise.  Ms. Armstrong asked whether there is anything in the existing Ordinance that requires the developer to analyze the impact of the incremental trips on that road?  Ms. Smith said that she does not believe there is anything in the Ordinance regarding this. 


Chairman Pearce said that under the future development section, he feels that the Board needs to specifically decide whether the Board is going to require a buffering on the commercial lot.  Mr. Campano said that this project in general is similar to their Aberdeen project with one exception regarding the multi-family in the front.  He said that regarding the commercial lot and buffering, he is not completely opposed to doing some type of buffering but he would rather it not be a restriction.  He said that they intend to keep the apartment community and common area and also intend to keep the commercial center as income property not unlike we previously did at their other development (Chadwick) and they are being designed work together as one element, so they intend to do something there that they feel shouldn’t be buffered.  He said that they want to create an entrance and a commercial center that is attractive and should be seen.  Being that they intend to own all of it and keep it as income property, they feel that buffering might be detrimental to intentionally create a line between the two that hides one from the other, as they are made to work together.  Mr. Campano said that they would add all of the trees needed.  Chairman Pearce feels that buffering is required when there are other uses in another spot, but not from within themselves.  Chairman Pearce feels that the Board should not require buffering in this case.  Board members agreed. 


Mr. Allison said that his opinion with regard to the water and sewer, if it does not have enough capacity, it would not work for them.  Chairman Pearce said that he understands the situation with the sewer and he feels that when the application was put in the Planning Board accepted the application at that time and he feels that the Board has somewhat of a responsibility to go forward on it, but he feels that the Planning Board should have the capacity letters.  He said you can request a variance when you can’t get the capacity letters because of the situation that Cane Creek is in, but the water letters the Planning Board members should have had and should have been part of the application.  He said he feels that now the Planning Board has the responsibility to go forward because once it has accepted the application, the Board has a responsibility to act on it.  Mr. Cooper made a motion that the Planning Board find and conclude that the Master Plan and Phase 1 Development Plan submitted for Fox Glen subdivision complies with the provisions of the Subdivision Ordinance, except for technical and procedural comments section of the Staff’s memo that have not been satisfied by the applicant and he further moved that such plans be approved subject to the following conditions:  the applicant satisfies comments 1 and 6 before construction begins and comments 2 through 5 and 7 by approval of the Final Plat.  In addition, there will be no commercial buffer requirement.  Leon Allison seconded the motion.  Mr. Patterson stated approving Phase 1 when there is mention of future development troubles him.  He feels that if it is not ready to build, then it should be a future phase.  He also mentioned that apartments, even though they are defined residential, he feels that it is purely a commercial business and feels it is the same as renting offices.  Chairman Pearce said that the difference is that commercial is used technically from 8 a.m. to 5 p.m. and the apartments are permanent year-round dwellings and they are occupied for residential standards and the density of people living there is looked at differently than commercial and by our Ordinance, they are considered residential.  Todd Thompson, Tedd, Pearce, Tommy Laughter, Mike Cooper, and Leon Allison were in favor of the motion.  Paul Patterson and Vivian Armstrong opposed the motion.  There was a vote of 5 to 2 in favor.  The motion carried.


Sweetwater Oaks (File # 04-M03) – Combined Master Plan and Phase IV Development Plan Review for Property Located off Howard Gap Road – (62 Lots Total, 17 Lots in Phase IV) – Jon Laughter, Agent for Nathan Benson Builders, Owner.  Mr. Cook stated that this is a combined Master and Phase IV Development Plan and that the property is a 60.60-acre tract located off Howard Gap Road.  He said that it is a major residential subdivision containing a total of 62 single-family lots.  Phases I, II, and III have previously been conditionally approved and Phase IV is a 23.0-acre tract with 17 single-family dwellings.  Mr. Cook stated that the property is located in the Open Use district and has private roads, wells, and septic tanks servicing the development. 


Mr. Cook stated that all the requirements were met regarding the Master Plan.  With regard to the Development Plan, these are his comments:


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


2.      Private Roads.  On the Final Plat, it 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 of the Henderson County Subdivision Ordinance).



3.      Road Grade.  The applicant proposed paved private local residential roads, which exceed the Subdivision Ordinance minimum standards to serve the property.  The road grades are not to exceed 16%.  On the Final Plat, the roads grades will need to be certified (HCSO 170-21, Table 1).


4.      Right-of-Way.  The developer needs to provide proof of right-of-way easement recordation through lots 18 and 19 in Phase I and proof of right-of-way situation regarding the overlap of property and access for the property entrance off Howard Gap Road prior to the Final Plat approval. 


Chairman Pearce asked whether the subdivision has provided any evidence of the right-of-way? 

Mr. Cook stated that Mr. Laughter, agent for the developer, had said that he would, but at this time Staff has not received it. 


Mr. Cook stated that the “other comments” it deals with the water and sewer lines situation.  The applicant has proposed individual wells to serve Phase IV, the closest water line is just 0.5 mile way.  According to the Subdivision Ordinance, “A subdivision shall be required to connect to a public water supply system when the subdivision is located within a distance from the existing water system equal to the product of 100 feet multiplied by the number of lots proposed for the subdivision.  However, if the subdivision is located more than 5,000 feet from an existing water line, such connection is not a requirement.”  The subdivision meets both of those requirements to connect to City of Hendersonville water system.  The applicant states because of the elevation on the project a 100,000-gallon pump station would need to be built to supply water to the lots.  Ms. Armstrong stated that the Ordinance reads shall.  Chairman Pearce said that Section 170-20B(3) does give some exceptions to that.  Ms. Smith said that it states that it is actually Staff that determines whether it would not be economically feasible for a subdivision to be connected to a public water or sewer system, and another system may be used, subject to approval by the appropriate agencies.  Chairman Pearce asked, technically, how does the Board address the fact that by the time they are building this, there might be, for instance, a sewer line main in the center of the road.  Would the applicants come back or would they go to private septic because it was approved at the time?  Ms. Smith said that they could go forward with how the Planning Board approved it.  Chairman Pearce asked Mr. Cook, “What is Staff’s position on the water situation?”  Mr. Cook said that based on what was discussed with Mr. Laughter, it was a hardship that he would entail trying to connect with the water regarding the line coming from the school.  Mr. Laughter indicated that it would not be feasible for the developer to connect to it because of the terrain being up hill and that they could not pump it up and would have to create their own pump station on the property to supply it, which Staff considered a hardship.  Chairman Pearce felt that it was not clear in Staff’s memo regarding this.  Mike Cooper asked whether Phase I, II, and III are done?  Mr. Laughter said that Phase I and II are completed.  Phase III has been approved, but the road has not been constructed. 

Mike Cooper said that when this was originally approved, did that not preclude the applicant from having to install a waterline if it was approved prior to the waterline going in?  He also asked if he needed to put it in now to finish a phase?  Chairman Pearce said that with regard to a Master Plan, it does not preclude a phase.  Ms. Smith said that there are no waterline requirements for a Master Plan and that the standards in the Ordinance apply.  Mr. Allison said that the applicant has done Phase I, Phase II and Phase III without a right-of-way to put this waterline through there.  Mr. Laughter said that Phase III was the last phase that they have done and the water was not available.  Mr. Allison said that the developer compensated for the waterline because it wasn’t available, correct?  Mr. Laughter said that it was not available, but it was approved for wells.  Mr. Laugher feels that it is still not available for the reason mentioned previously regarding elevation.  Chairman Pearce asked Mr. Laughter to provide cost to install a pump station.  Mr. Laughter said with a 5,000 hydro tank, stand-by power and radio controlled, it is estimated at $ 115,000.  Chairman Pearce said after figuring out costs that would be incurred by the developer, it could be substantiated that there would be a hardship in accomplishing this project.  Chairman Pearce asked if you have a Master Plan and it is approved with private water and septic or it is not approved with anything, are subsequent phases under the rules, under new rules as they come along or are they under the original rules of the Master Plan?  Ms. Smith said that she could not clearly answer that.  He asked, what about on a road? Ms. Smith said that they do not need to show road standards on a Master Plan.  It isn’t until it gets to the Development Plan stage that they need to show some of these things.  Mr. Cooper said that it seems ridiculous to him that in getting your last phase approved, you may have to put water in.  Mr. Laughter said that the question is, is water available, and really it is not feasibly available.  Chairman Pearce suggested that in the future he feels that Staff should waive it.  Ms. Smith said that she recommended that they add this to the list of items for the Subcommittee, as she does not feel it should be a Staff approval.   Mr. Patterson said that he did not see any drainage easements shown.  Mr. Laughter said that they do have some cross pipes near the property lines and the lot lines will fit the drainage and will be covered in the restrictions. 


Chairman Pearce made a motion that the Planning Board find and conclude that the combined Master Plan and Phase IV Development Plan submitted for Sweetwater Oaks subdivision complies with the provisions of the Subdivision Ordinance except for those matters addressed in the technical and procedural comments of Staff’s memo that have not been satisfied by the

applicant.  He further moved that the combined Master Plan and Development Plan be approved subject to the following conditions:  The applicant satisfies Comment 1 before construction begins, and Comments 2, 3, and 4 on the Final Plat.  Also that the Planning Board waives connections to public water and sewer because it is economically unfeasible as per Section 170-20 B (3) of the Henderson County Subdivision Ordinance.  Mike Cooper seconded the motion and all members voted in favor.


Subcommittee Assignments and Meeting Dates.  Ms. Smith indicated that Ms. Radcliff is going to be scheduling a meeting with the Short Term Zoning Subcommittee with regard to the Hidden Lakes rezoning request.


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

Leon Allison seconded the motion.  All members voted in favor.  The meeting adjourned at 8:55





________________________                                    ______________________               

Tedd M. Pearce, Chairman                                        Kathleen Scanlan, Secretary