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2007-07-09 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 131 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, July 9, 2007, at 5:30 p.m. in the Human Resources Training Center, New Hanover County Government Center, 230 Government Center Drive, Suite 135, Wilmington, North Carolina. Members present were: Chairman William A. Caster; Vice-Chairman Robert G. Greer; Commissioner Ted Davis, Jr.; Commissioner William A. Kopp, Jr.; Commissioner Nancy H. Pritchett; County Attorney Wanda M. Copley; Clerk to the Board Sheila L. Schult and County Manager Bruce T. Shell. Chairman Caster called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Director of the Human Relations Commission, Carl Byrd, Sr., gave the invocation. Commissioner Pritchett led the audience in the Pledge of Allegiance to the Flag. Chairman Caster reported that Regular Agenda Item 3 ? Update on the Flemington Soccer Complex Interlocal Agreement has been withdrawn and Regular Agenda Item 5.6 ? Public Hearing to Consider a Request by Shanklin and Nichols, PA, on Behalf of Mason Landing Yacht Club, LLC, to Modify an Existing Conditional Use District Located at or Near 2029 Turner Nursery Road to add 7.69 Acres from R-20S Residential District to the Existing CD (R-15) Conditional Residential District will not be heard this evening. APPROVAL OF CONSENT AGENDA Chairman Caster asked if any member of the Board would like to remove an item from the Consent Agenda for discussion. Hearing no comments, Chairman Caster requested a motion from the Board to approve the items on the Consent Agenda as presented. Motion: Commissioner Kopp MOVED, SECONDED by Vice-Chairman Greer, to approve the items on the Consent Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes The Commissioners approved the minutes from the following meetings as presented by the Clerk to the Board: Board of Equalization and Review meeting held on June 12, 2007 Budget Work Session held on June 14, 2007 Agenda Review meeting held on June 14, 2007 Regular Session meeting held on June 18, 2007 Adoption of Resolutions to Add Courtney Pine Drive, Beeston Court of Section II Brittany Woods Subdivision and Potomac Woods Subdivision Sections 2-5 to the State Highway System The Commissioners adopted the resolutions to add Courtney Pine Drive, Beeston Court of Section II Brittany Woods Subdivision and Potomac Woods Subdivision Sections 2-5 to the State Highway System (Division File No: 1099-N, 1100-N, 1098-N). Copies of the resolutions are hereby incorporated as a part of the minutes and are contained in Exhibit Book XXX, Page 26.1. Ratification of Landfall Foundation Grant - Department of Aging The Commissioners ratified a grant application submitted by the Department of Aging to the Landfall Foundation Grant in the amount of $6,000. If awarded, the funds will be used for administrative supplies and to cover salary costs for one temporary employee for the Prescription Drug Assistance Program from January 1, 2008 - December 31, 2008. Approval of Board of Education Budget Amendment ? New Hanover County Board of Education The Commissioners approved the Board of Education Budget Amendment # 4 for the State lease of school buses. The entry on the Board of Education Books is necessary since the State cannot directly enter into the lease for the buses. Acceptance of Help America Vote Act Title II Equipment Grant and Adoption of Budget Ordinance Amendment 08-001 ? Board of Elections The Commissioners, on behalf of the Board of Elections, accepted grant funds in the amount of $132,000 from the Help America Vote Act Title II Equipment Grant and adopted Budget Ordinance Amendment 08-001. The funds will be used to purchase the Electronic Access System as the Electronic Records Access at the Polling Place method. A copy of the Budget Ordinance Amendment is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.2. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 132 Adoption of Resolution Declaring Equipment Surplus and Approving the Sale of the Surplus Equipment? Finance Department The Commissioners adopted the resolution declaring a 1994 model 816B Caterpillar Landfill Compactor as surplus equipment and approving the sale of the surplus equipment to Marcel Equipment in the amount of $24,000. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.3. Approval of Creation of an Electronic Records System Policy and Revisions of Personnel Records Maintenance Policy ? Human Resources The Commissioners approved the creation of the Electronic Records System Policy and revisions to the Personnel Records Maintenance Policy as requested by the Human Resourses Department. The revisions reflect the transition from paper to electronic personnel records. The next step will be to complete an application to the North Carolina Department of Cultural Resources requesting permission to begin maintaining County management records in an electronic records system rather than paper records. REGULAR AGENDA ADOPTION OF PROCLAMATION DECLARING JULY 2007 AS PARKS AND RECREATION MONTH IN NEW HANOVER COUNTY Chairman Caster reported that the Board has been requested to adopt a proclamation declaring July 2007 as Parks and Recreation Month in New Hanover County. Vice-Chairman Greer read the proclamation into the record and moved for approval. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to adopt the proclamation declaring July 2007, as Parks and Recreation Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.4. RECOGNITION OF THE NEW PUBLIC SAFETY 800 MHZ RADIO SYSTEM Emergency Management Director Warren Lee reported that in November 2004, New Hanover County awarded a contract to Federal Engineering, Inc. to provide a full independent assessment of the County's 800 MHz public safety radio system and prepare a plan to address improving radio coverage, traffic-handling capacity and providing a migration plan for APCO Project 25 standards compliance system-wide. On August 15, 2005, the County entered into a contract with Motorola, Inc. for the acquisition of infrastructure for the radio system project and new radio console equipment for the Public Safety Communications Center. At the same time a contract was awarded to Federal Engineering, Inc. for implementation and technical support during the project. In December 2005, the first major phase of the project was completed with the addition of a five-channel analog system in the southern portion of the County. In June 2006, the new Public Safety Communications Center came on-line with new Motorola dispatch consoles. On June 27, 2007, work was completed on New Hanover County's APCO P-25 compliant Motorola Astro 25 radio system. Director Lee recognized County staff and personnel from the municipalities, Motorola, Federal Engineering and Wireless Communications for being part of North Carolina's first true Project 25 public safety radio system. Ron Bosco, Federal Engineering, Inc., Tommy Pope, Wireless Communications, Inc., and Andrew Curd, Motorola, Inc., expressed their appreciation to the Board. On behalf of the Board, Chairman Caster recognized the accomplishment. PUBLIC HEARING AND AUTHORIZATION FOR WAVE TRANSIT AUTHORITY TO SUBMIT A GRANT APPLICATION TO THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION?S RURAL OPERATING ASSISTANCE PROGRAM FUNDS Arlanda Rouse, Wave Transit Authority Assistant Director, reported that New Hanover County is eligible to receive funds in the amount of $158,623 from the North Carolina Department of Transportation's Rural Operating Assistance Program for FY 2007-2008. Funding must be used to provide transportation services to specific populations of the unincorporated areas of the County. Staff is requesting the Board conduct the public hearing, approve the request to submit an application for funds, authorize Chairman Caster and staff to execute the appropriate certifications and assurances for the application, and accept the funds, if awarded. Chairman Caster opened the Public Hearing and asked if anyone would like to speak in favor of or in opposition to the request. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 133 Hearing no comments, Chairman Caster closed the Public Hearing and requested direction from the Board. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Kopp, to authorize Wave Transit Authority to submit an application for funds to the North Carolina Department of Transportation's Rural Operating Assistance Program for FY 2007-2008, authorize Chairman Caster and staff to execute the appropriate certifications and assurances for the application, and accept the funds, if awarded. Upon vote, the MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING TO CONSIDER A REQUEST BY WITHERS AND RAVENEL, ON BEHALF OF MONKEY JUNCTION MINI-STORAGE, FOR A SPECIAL USE PERMIT LOCATED AT 2306 NORTH RD 23 STREET IN AN AI AIRPORT INDUSTRIAL ZONING DISTRICT (S-576, 05/07) Chairman Caster opened the Public Hearing and announced that the Special Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Chris O?Keefe Jane Daughtridge Cindee Wolf Archie McGirt Alton Lennon Senior Planner Jane Daughtridge reported that Attorney Alton Lennon, on behalf of Archie McGirt and Monkey Junction Mini-Storage, is requesting a Special Use Permit for a dwelling unit in association with a mini- rd storage facility located at 2306 North 23 Street in an AI Airport Industrial zoning district and presented an overview of the project. Planning Director Chris O?Keefe presented a report on the subject property highlighting that at its June 7, 2007 meeting, the Planning Board voted 7 to 0 to recommend approval of the request with no one from the public speaking. Staff recommends approval. Planning Director O?Keefe read the following findings of facts into the record: 1. The Board must find that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The subject property is located within the Wrightsboro Volunteer Fire District. B. City water will serve the facility C. County sewer is approved for the mini-storage project. D. A small percentage of the subject property is located in a 100-year floodplain. rd E. Access to the site is from North 23 Street, an identified urban major arterial. F. NCDOT has issued a driveway permit. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The site is located in an AI - Airport Industrial Zoning District. A Special Use Permit allows a dwelling unit within a principal use in the AI District under certain conditions. B. The residence is only to be used by the resident manager and is intended to provide on-site security for the business in accordance with 72-29(2) of the ordinance. C. The building provides a minimum 10-foot site yard and 20-foot rear yard in accordance with the provisions of 72-29(3) of the ordinance. D. The site plan indicates unobstructed open space of 1,922 square feet, consistent with 72-29(4). E. The proposed office/residential use is approximately 3,000 square feet gross of floor area. The residence does not exceed 50% of the area in accordance with 72-29(5) of the ordinance. F. The dwelling will be an upper story residence over the mini-storage office, consistent with 72- 29(6) of the ordinance. G. Off-street parking indicates two spaces for the residence in addition to the requirements for the office use, in compliance with 72-29(7) of the ordinance. H. A building layout plan is included with the site plan as required by 72-29(8) of the ordinance. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. Surrounding properties are industrial in nature. B. No evidence has been presented that the proposed use will injure the value of adjoining or abutting property values. 4. The Board must find that the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The New Hanover County Comprehensive Plan classifies this location as Transition. The Transition Class is intended to provide for continued intensive urban development on lands that have been or will be provided with necessary urban services. B. Surrounding land uses include the Northside Wastewater Treatment Plant, the airport and manufacturing use. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 134 Chairman Caster announced that the applicant and opponents will each be allowed a total of twenty minutes to present their arguments, with fifteen minutes each for the presentation and five minutes each for rebuttal comments. Chairman Caster asked if the Petitioner?s representative would like to speak on the request. Attorney Alton Lennon, on behalf of Archie McGirt and Monkey Junction Mini-Storage, stated that they agree with the findings of facts as presented. Mr. McGirt is proposing to locate a residential apartment for an on-site employee of the facility for the security of the business and safety of the clients using the facility. Cindee Wolf, with Withers and Ravenel, clarified that on-site residences are permitted to be used by a manager and family. Chairman Caster asked if anyone would like to speak in opposition to the request. Hearing no comments, Chairman Caster closed the Public Hearing and asked for direction from the Board. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to grant the Special Use Permit for a residential unit for housing of an employee of the mini-storage facility based on the evidence presented and the findings of fact concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 15.1. PUBLIC HEARING TO CONSIDER A REQUEST BY WITHERS AND RAVENEL, ON BEHALF OF MONKEY JUNCTION MINI-STORAGE, TO MODIFY AN EXISTING CONDITIONAL USE PERMIT LOCATED AT 5044 CAROLINA BEACH ROAD IN A CD (B-2) CONDITIONAL DISTRICT (Z-696, 05/07) Chairman Caster opened the Public Hearing and announced that the Conditional Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Chris O?Keefe Jane Daughtridge Cindee Wolf Archie McGirt Alton Lennon Senior Planner Jane Daughtridge reported that Attorney Alton Lennon, on behalf of Archie McGirt and Monkey Junction Mini-Storage, is requesting to modify an existing Conditional Use Permit in the Urban Land Classification located at 5044 Carolina Beach Road to add a vehicle washing facility use to the site plan and to eliminate other commercial/office uses, converting and increasing the approved storage use on the site plan of the companion Special Use Permit in a Conditional District (B-2) and presented an overview and history of the project. In July, 2000, the Board approved the CD (B-2) rezoning for mini-storage and specified commercial uses, with four recommended conditions. In November of 2005, the Board approved a revision to the original Conditional District site plan, allowing the applicant to increase the warehouse storage space to a total of 104,700 square feet, re- orient the buildings on the site plan and reduce the square footage of the commercial and office buildings from a total of 24,800 square feet to 14,136 square feet. Uses and other conditions of the original approval were not modified. Planning Director Chris O?Keefe reported that the Petitioner is now requesting another revision to the current Conditional Use Site Plan. The proposed revision adds a car wash use not originally included on the list of uses and increases the overall square footage approximately 11,926 square feet. This plan changes the original mix of uses proposed along the Carolina Beach Road frontage, which could have provided useful goods and services for the adjacent neighborhood as well as break up the view of mini warehouse buildings. Staff believes the square footage of the facility, as currently approved (118,836 square feet) should not be expanded but would support transitioning the square footage allocated to the southernmost commercial building (6,372 square feet) from commercial to storage use provided bays open only toward the southwest and architectural details provide an appearance of a front façade along Carolina Beach Road rather than a building back wall. Applicant has adjusted the site plan to indicate that the existing fencing will remain in place along the highway frontage and adjacent property line and that no additional signage should be allowed, as suggested by staff in relation to the car wash. Also, if this proposal is approved, the site plan should reflect the reduction in the list of NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 135 uses on the originally approved list to include only storage, car wash and office/residential unit. The original conditions of the Special Use Permit relating to setbacks, buffering, lighting, fencing and architectural details should continue and become a part of this revised site plan. Planning Director O?Keefe read the following findings of facts into the record: 1. The Board must find that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The site is served by public water and sewer. B. The site has access from Carolina Beach Road. C. Fire service is provided by Myrtle Grove VFD. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The development to date has been in accordance with the originally approved or modified permit. B. The original approval of the conditional district envisioned the commercial areas as a potential public benefit to surrounding residential areas as well as a front visual buffer from the storage area to the rear. This proposal would modify the premise of the original approval of the conditional district to that extent. C. The original conditional district was approved based on a specified developable area. That area has already been increased once from 103,536 square feet to 118,836 square feet which is 14.8%. Incrementally increasing the intensity of the use changes the limited premise upon which the conditional district was originally offered and approved. D. The proposed total square footage of 130,080 would constitute a 25.6% increase over the originally approved project. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. Sufficient setbacks, landscaping and buffering are currently provided for the existing development and surrounding residential property. 4. The Board must find that the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The site is located in the Urban Land Classification as defined by the 2006 CAMA Land Use Plan. Intensive development and redevelopment of these areas are encouraged. Staff recommends approval with the following conditions: 1) Additional buffering to protect the residential properties to the north should be provided. 2) Storage units should not open toward the front of the property. At its May 3, 2007 meeting, the Planning Board voted 3-1 to recommend approval of the requested modification, including staff?s recommended conditions. No one from the public spoke on this item. Chairman Caster announced that the applicant and opponents will each be allowed a total of twenty minutes to present their arguments, with fifteen minutes each for the presentation and five minutes each for rebuttal comments. Chairman Caster asked if the Petitioner?s representative would like to speak on the request. Attorney Alton Lennon, on behalf of Monkey Junction Mini-Storage, stated that they agree with the findings of facts as presented. Cindee Wolf with Withers and Ravenel, on behalf of Monkey Junction Mini-Storage, presented an overview of the project highlighting that it will be a seven bay self-service car/boat wash. A private well system is proposed to provide water for the wash with a re-use system and the storage area. The proposed request will complete the build-out of available space. Attorney Lennon stated that the proposed project finishes the original project and requested the Board approve the 130,762 square feet and not limit it to the Planning Department staff?s recommendation of 118,836 square feet. Chairman Caster asked if anyone would like to speak in opposition to the request. Hearing no comments, Chairman Caster closed the Public Hearing and asked for direction from the Board. Commissioner Davis clarified with Director O?Keefethat with respect to the original permit, staff prefers that the square footage not be increased. Director O?Keefe stated that the proposed request is changing the original permit not just ?tweaking? it. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 136 Vice-Chairman Greer stated that the proposed increase in storage area will generate less traffic than the existing office/commercial use. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Kopp, to modify the existing Conditional Use Permit to Monkey Junction Mini-Storage to locate a vehicle washing facility use to the site plan and to eliminate other commercial/office uses, converting and increasing the approved storage use on the site plan based on the evidence presented and the findings of fact concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County with the following conditions: 1) additional buffering to protect the residential properties to the north should be provided; and 2) the storage units should not open toward the front of the property. Upon vote, the MOTION CARRIED UNANIMOUSLY A copy of the Conditional Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 15.2. Break Chairman Caster called for a break from 6:44 p.m. until 6:55 p.m. INTRODUCTION OF NEWLY NAME CHIEF DEPUTY Sheriff Sid Causey announced that Captain Ed McMahon will be assuming the role of Chief Deputy on the September 1, 2007, retirement of Chief Deputy Tom Parker. On behalf of the Board, Chairman Caster congratulated Captain McMahon and wished him success in his new role. PUBLIC HEARING TO CONSIDER A REQUEST BY OGDEN FIRE DEPARTMENT TO MODIFY AN EXISTING SPECIAL USE PERMIT LOCATED AT 907 PORTER?S NECK ROAD IN AN R-20 ZONING DISTRICT (S-345, 06/07) Chairman Caster opened the Public Hearing and announced that the Special Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Chris O?Keefe Jane Daughtridge Matt Davis Donnie Hall Senior Planner Jane Daughtridge reported that Ogden Fire Department is requesting to modify an existing Special Use Permit by removing conditions to allow for residential use in the fire station and to allow clearing of underbrush in the buffer area located at 907 Porter?s Neck Road in an R-20 zoning district in the Transition Land Classification and presented an overview and history of the project. In May of 1993, the New Hanover County Commissioners approved the Special Use Permit for a satellite fire station in an R-20 zoning district, subject to a list of nine conditions. An advisory opinion by the County Attorney in a 1998 memo to the Planning Director invalidated a portion of Condition 9 which imposed a prohibition on using the site as a polling place since state law requires expenditure of public money and the availability of such buildings for voting places. Planning Director Chris O?Keefe reported that the Petitioner is requesting to remove the following existing conditions: ? Condition 5 - The existing vegetation along the frontage of Porter?s Neck Road shall be retained and other landscaping shall be provided in this area at such a height to provide additional visual opacity from the road. Also, on-site landscaping and buffering must comply with Section 67 of the Zoning Ordinance. ? Condition 8 - No residential activity, such as the overnight lodging of firemen shall be permitted except during emergencies that may require overnight stays. Planning Director O?Keefe read the following findings of facts into the record: 1. The Board must find that the modified use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The subject property is accessed via Sharaz (Syrah) Way to Porter?s Neck Road. B. New development in this area of the county has increased significantly since 1993, creating higher demand for emergency services. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 137 C. Traffic from new residential subdivisions to the north often use Sharaz (Syrah) Way for ?cut- through? access to Porter?s Neck Road. D. Residential staffing at the fire station will improve response times to this area of the county. 2. The Board must find that the modified use meets all required conditions and specifications of the Zoning Ordinance. A. The site is located in an R-20 Residential Zoning District. Government buildings may be allowed by Special Use Permit. B. The proposed residence is only to be used by the firefighters on duty. C. No violations of the existing permit have been noted by code enforcement officials. D. Allowing clearing of undergrowth would not be counter to the intent of Condition 5 of the existing permit so long as trees remain in place and reasonable visual opacity is maintained. E. Off-street parking is shown in compliance with 72-29(7) of the ordinance. F. A building layout plan is included with the site plan as required by 72-29(8) of the ordinance. The current storage area would be converted to accommodate two beds. 3. The Board must find that the modified use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. The residential component will be a conversion of existing second floor storage area and will not increase the overall size of the building, consistent with Condition 7 of the original permit. B. No evidence has been presented that the proposed use will injure the value of adjoining or abutting property values. C. Providing 24-hour fire service could improve the ISO rating and thereby improve insurance rates for area residents. 4. The Board must find that the location and character of the modified use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The New Hanover County Comprehensive Plan classifies this location as Transition. The Transition Class is intended to provide for ?continued intensive urban development on lands that have been or will be provided with necessary urban services. B. Surrounding properties are residential in nature. C. The existing conditions regarding added setbacks and retention of trees and vegetation serve to promote harmony with the character of the area. At its June 7, 2007, meeting the Planning Board voted 4 to 3 to recommend approval of the modifications with the exception that clearing within the front yard area should not include trees larger than 4 inch caliper. The concern from some of the Planning Board members was the clearing of the underbrush. No one from the public spoke. Staff feels that the findings are positive but recommends that Condition 5 should remain in place to protect trees; however, existing vegetation which might be deemed ?underbrush? by code enforcement officials could be removed without offending the overall intent of the original concern for protecting the residential character in the area. Commissioner Pritchett stated that the underbrush is needed to be cleared for visual safety. Chairman Caster announced that the applicant and opponents will each be allowed a total of twenty minutes to present their arguments, with fifteen minutes each for the presentation and five minutes each for rebuttal comments. He requested staff to make the presentation. Chairman Caster asked if the Petitioner would like to speak on the request. New Hanover County Deputy Fire Chief of Operations, Matt Davis, stated that his department has worked closely with both the Zoning and Planning Departments. He reported the following reasons for the modification to the Special Use Permit: ? Condition 5 ? Some of the underbrush along the frontage of Porter?s Neck Road is being requested to be cleared as it has now become a fire and safety hazard to the area and impedes visibility. Care will be given to remain in compliance with Section 67 of the Zoning Ordinance. ? Condition 8 ? The request to add residential staffing, 24/7, to the station will provide more efficient and effective delivery of emergency services for the citizens of this area. Commissioner Kopp stated that due to the increase in population in this area there is a need for the fire station to be manned 24/7, and doing so will provide a safety benefit to the citizens. Chairman Caster asked if anyone would like to speak in opposition to the request. Hearing no comments, Chairman Caster closed the Public Hearing and asked for direction from the Board. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 138 Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Kopp, to modify the existing Special Use Permit to allow residential use in the Ogden Fire Station and the clearing of vegetation, in the buffer area, necessary to allow for safe egress and ingress located at 907 Porter?s Neck Road in an R-20 Zoning District based on the evidence presented and the findings of fact concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 15.3 BREAK Chairman Caster called for a break from 7:20 p.m. until 7:30 p.m. PUBLIC HEARING TO CONSIDER A REQUEST BY DAVID GIRARDOT, ON BEHALF OF UNCW, TO MODIFY AN EXISTING SPECIAL USE PERMIT LOCATED AT 5600 MARVIN K. MOSS LANE IN AN R-15 ZONING DISTRICT (S-329, 06/07) Chairman Caster opened the Public Hearing and announced that the Special Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Chris O?Keefe Jane Daughtridge David Girardot Dan Baden Paul Reinmann Paul Meadows Randy Anderson Ron Trotta Scott Clark Leah Grenell Sidney Causey Chairman Caster announced that the applicant and opponents will each be allowed a total of twenty minutes to present their arguments, with fifteen minutes each for the presentation and five minutes each for rebuttal comments. He requested staff to make the presentation. Senior Planner Jane Daughtridge reported that David Girardot, on behalf of UNCW, is requesting to modify an existing special use site plan to expand the Marine Sciences Center in an R-15 zoning district located at 5600 Marvin K. Moss Lane to add an 80,000 square-foot bio-technology laboratory building and oyster hatchery and remove the following condition that was added in 2001: ? Condition 3 - Between the hours of 8:00 p.m. and 8 a.m. one heating/cooling unit will be in operation. The unit will operate on low setting. Senior Planner Daughtridge provided a history and overview presentation of the project highlighting that the project was originally approved in 1991. In 2001, major modifications were approved with conditions 1-4 being added. In 2003, additional modifications were approved with conditions 5 through 9 being added. Planning Director O?Keefe read the following findings of facts into the record: 1. The Board must find that the modified use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The subject property is located within the Myrtle Grove VFD. B. The site is served by County Sewer and City water. C. Access to the site is from Masonboro Loop Road via the existing Marvin K. Moss Lane. According to the applicant?s statement, the 15-foot private road (Holt Road) to the south will remain available to residential property owners for access to Masonboro Loop Road, but will not be used by the Marine Science Center for access to its site; however, the site plan shows access to Holt Road from the new building because code requires the access. D. The proposed expansion will provide additional land, a new bio-technology building and an oyster hatchery to the existing Center for Marine Sciences. E. The proposed expansion adds approximately 9.3 acres of development area to the existing 55.6- acre developed site. The additional acreage is located adjacent and south of the existing site and will result in a new total of approximately 65 acres. F. The plan adds approximately 80,000 square feet of research, laboratory, and administrative space to the facility. G. Site clearing for the project will be limited to areas required for site construction. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 139 H. Applicant proposes ?green? building principles to the extent possible. 2. The Board must find that the modified use meets all required conditions and specifications of the Zoning Ordinance. A. The proposed expansion to the Marine Research Facility will be operated by the University of North Carolina at Wilmington?s Center for Marine Sciences. B. The property is zoned R-15 Residential. Colleges, Universities, and related uses are permitted by Special Use Permit in the R-15 Residential District. C. The existing facility contains approximately 81,300 square feet of building floor area with 24,660 square feet under construction. D. The proposed new addition on the south side of the existing building will be a two-story structure containing approximately 80,000 square feet. E. Parking will be provided in accordance with Section 81 of the County?s Zoning Ordinance. F. A 50-foot buffer of natural vegetation will be preserved between adjacent property owners and the Marine Science Center. G. The eastern portion of the site lies within the 100 year floodplain and there is salt marsh that is regulated by the County Conservation Overlay District. No buildings are currently within this area and none are proposed. H. The center is consistently out of compliance with condition (3) below because the laboratory cannot function properly when that condition is imposed, according to comment from code enforcement official; however, the County?s noise standard is not being violated. I. The Board of Commissioners approved the existing facility in 1991 and revised the permit in March 2001 with four conditions; the permit was again modified in September of 2003, adding conditions (5) through (9) below: (1) UNCW will continue their commitment to work with the neighbors on mitigating the noise concern emanating from the heating and cooling units. (2) Any additional proposed construction after the Board approval in 2001 will require a new Special Use Permit. (3) Between the hours of 8:00 pm and 8:00 am, one heating/cooling unit will be in operation. The unit will operate on low setting. (4) Noise readings will be monitored quarterly for one year by professional technicians hired by UNCW. (5) All other applicable Federal, State and local laws. (6) Stormwater Management shall comply with the County Ordinance. (7) The additional parking areas shall remain unpaved. (8) All previous conditions shall remain. (9) The addition to the building shall not exceed 25,500 square feet. 3. The Board must find that the modified use will not substantially injure the value of adjoining or abutting or that the use is a public necessity. A. The proposed addition will maintain and/or improve visual and acoustical screening. B. Improvements to the site will allow access from the Marvin K. Moss Lane entrance. C. Applicant indicates that community meetings will be held to inform and receive input from area residents. D. No evidence has been presented that this expansion will injure the value of adjoining or abutting property values. 4. The Board must find that the location and character of the modified use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The site is classified as resource protection by the New Hanover County Comprehensive Plan. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. Compatible commercial and industrial development may be located within this class provided important resources are not impacted. B. Several regulated trees exist on site. Efforts should be made to preserve these specimen trees or removal be mitigated in accordance with Section 67 of the Zoning Ordinance. Staff recommends the following: 1) The conflicting statements regarding use of Holt Road by the Marine Science Center needs to be either within the findings or on the site plan. 2) Remove the pre-existing condition relating to HVAC hours of operation and settings so that the facility can function properly without violating the conditions of the permit. This removal does not constitute permission to violate the County?s noise ordinance. At the Planning Board?s June 7, 2007, meeting they voted 6 to 0 to recommend approval with the conditions suggested by staff. Chairman Caster reported that he is a member of the Marine Sciences Center Advisory Board stating that he does not feel that there is any conflict of interest with this item and asked any Board member to speak-up if they had a concern. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 140 Hearing no comments, Chairman Caster asked if there were any questions from the Board. Commissioner Davis stated that the Board has kept Condition 3 in place through two Special Use Permit modifications and it is his understanding that the facility has been in violation of Condition 3 but not in violation of the County?s noise ordinance. Condition 3 should remain with the present request. Chairman Caster reported that the facility is in a residential district which has more stringent noise restrictions than commercial districts and referenced a Decibel Meter Readings report done by Sheriff Deputies. Planning Director O?Keefe reported that to his knowledge, the Center has not violated the County?s residential noise ordinance. Vice-Chairman Greer stated that no additional noise should be allowed and that noise is the issue. Chairman Caster asked if the Petitioner would like to speak on the request. David Girardot, representing UNCW, presented a history of the project and overview of the request stating that the new facility will house mostly existing employees with very few new employees being added. If approved, UNCW staff will continue to meet with neighbors during the design phase to address their concerns. He reported that emergency service access has been approved by Fire Services by way of Marvin K. Moss Lane with improvements. New Hanover County Deputy Fire Chief of Operations, Matt Davis, reported that emergency services vehicle access concerns have been addressed by the proposed modification to widen Marvin K. Moss Lane to 20 feet in width and the new building will have sprinklers. In addition, the Center will be required to maintain Holt Road as passable. Chairman Caster asked if anyone would like to speak in opposition to the request. Paul Meadows, Holt Road homeowner, voiced his concern that the facility should be required to have a secondary emergency access road for safety and that fire code requirements cannot be decreased or any exceptions made. He suggested that Holt Road be improved and used as the secondary access. Randy Anderson, Captains Lane homeowner, stated that he is not opposed to the expansion of the Marine Sciences Center if Condition 3 remains due to noise level concerns. Scott Clark, Holt Road homeowner, stated that he is not opposed to the expansion but requested that Condition 3 remain as a part of the modification of the Special Use Permit. Ron Trotta, Captains Lane homeowner and representing the Masonboro Landing Homeowners Association, reported that they are not opposed to the new facility but they are opposed to the removal of Condition 3. Leah Grenell, Masonboro Loop Road homeowner, voiced her concern that a secondary access will impede the quality of life they now enjoy. Commissioner Pritchett stated that the wording on Condition 3 needs to be rewritten to allow the Center to be in compliance with Condition 3 of the Special Use Permit and the County?s residential noise ordinance. As currently written, the restriction is difficult to enforce. In clarification, Mr. Girardot stated that they will continue to look into further upgrades to reduce the noise from the heating/cooling units and that the units for the new building will be housed between buildings to reduce noise. In response to comments made by Mr. Meadows, Deputy Fire Chief Davis stated that the main body of the Fire Code does allow for alternatives and/or exceptions. The building will have sprinklers and acceptable modifications will be made to Marvin K. Moss Lane to accommodate emergency service vehicles. In rebuttal, Mr. Meadows voiced concern that the expansion will adversely affect land values and land lock the property owners. He requested the Board postpone their decision until his fire code questions are answered. In rebuttal, Mr. Clark stated that he would like assurance that Holt Road will be maintained and passable. In response to comments made by Mr. Clark, Mr. Girardot stated that the Center acknowledges their responsibility in keeping their portion of Holt Road passable. Hearing no comments, Chairman Caster closed the Public Hearing and asked for direction from the Board. Dan Baden, Director of the Marine Sciences Center, clarified that when the weather is between 91 and 94 degrees the cooling units need to be turn to a higher level at night in order to maintain the required temperature. The boilers that are being replaced will help decrease the low rumbling noise. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 141 Commissioner Davis stated that once these improvements are made the Center will be in a better position to request the removal of Condition 3. Sheriff Sid Causey clarified that the Decibel Meter Readings report shows that of the four day period tested, from 10:00 p.m. until 7:00 a.m., the Center was in compliance with the residential noise ordinance with the exception of three times. He stated that the Sheriff?s Office is willing to use their equipment to monitor the facility whenever needed. Vice-Chairman Greer stated that the condition tied to the Special Use Permit needs to be tied to noise level not just the use of the heating/cooling unit and whether it is run on low or high. Motion: Commissioner Davis MOVED, SECONDED by Commissioner Kopp, to modify the existing Special Use Permit to expand the Marine Sciences Center located at 5600 Marvin K. Moss Lane to add an 80,000 square-foot bio-technology laboratory building and oyster hatchery based on the evidence presented and the findings of fact concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County with the condition that Condition 3 relating to HVAC hours of operation and settings remain on the existing buildings and new building. Upon vote, the MOTION CARRIED UNANIMOUSLY A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 15.4. Break Chairman Caster called for a break from 8:43 p.m. until 8:58 p.m. TABLED REQUEST BY SHANKLIN AND NICHOLS, PA, ON BEHALF OF MASON LANDING YACHT CLUB, LLC, TO MODIFY AN EXISTING CONDITIONAL USE DISTRICT LOCATED AT OR NEAR 2029 TURNER NURSERY ROAD TO ADD 7.69 ACRES FROM R-20S RESIDENTIAL DISTRICT TO THE EXISTING CD (R-15) CONDITIONAL RESIDENTIAL DISTRICT(Z-838, 04/06) Attorney Ken Shanklin, on behalf of Mason Landing Yacht Club, LLC, stated that they request the matter be tabled until November 1, 2007, to be re-evaluated at that time. The purpose for this request is due to the inability of his clients to obtain financing on additional properties for the project because of the sewer moratorium. He requested the Board approve their request. Chairman Caster requested direction from the Board. Motion: Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to approve the request by Ken Shanklin, on behalf of Mason Landing Yacht Club, LLC, to table the request until November 1, 2007, to be re- evaluated at that time. Upon vote, the MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING TO CONSIDER A REQUEST BY SHANKLIN AND NICHOLS, PA, ON BEHALF OF ACI-PINE RIDGE, LLC, TO REZONE APPROXIMATELY 16.2 ACRES OF PROPERTY LOCATED OFF NORTH MARKET STREET AT PORTER?S NECK ROAD FROM B-1 NEIGHBORHOOD BUSINESS ZONING DISTRICT TO CD (B-2) CONDITIONAL DISTRICT HIGHWAY BUSINESS (Z-861, 04/07) Chairman Caster opened the Public Hearing and announced that the applicant and opponents will each be allowed a total of twenty minutes to present their arguments, with fifteen minutes each for the presentation and five minutes each for rebuttal comments. He requested staff to make the presentation. Chairman Caster opened the Public Hearing and announced that the Conditional Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Chris O?Keefe Jane Daughtridge Ken Shanklin Jimmy Black Martin Sorensen Neil Shepherd David Sneeden Ronald Brink Ann Griffith Mead Briggs David Bauereis Philip Meiz John Jefferies Stuart Ball NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 142 Carl Robinson Lyle Overcash Dick Elmer Senior Planner Jane Daughtridge reported that Ken Shanklin with Shanklin and Nichols, PA, on behalf of ACI-Pine Ridge, LLC, is requesting to rezone approximately 16.2 acres of property located off North Market Street at Porter?s Neck Road in the Transition and Wetland Resource Protection land classifications from B-1 Neighborhood Business zoning district to CD (B-2) Conditional District Highway Business to locate a 169,000 square foot commercial building for up to forty-two possible uses and presented an overview of the request. The subject property is located in the northeast portion of the county in an area classified on the 2006 CAMA Land Classification map as transition on the southeastern portion and wetland resource protection on the northwestern. The property is west of North Market Street, at its intersection with Porter?s Neck Road and is bounded to the north by the new Highway 17 Bypass. Access is from North Market Street, which is a major arterial roadway. Level of service has been rated F meaning traffic volume exceeds capacity. The subject property is primarily vacant and wooded. There is one existing house and a fuel pump on the site. Strip commercial uses dominate the surrounding area along Market Street. The subject property is located within the Greenview watershed drainage area. The property is not influenced by flood hazard. Areas of 404 Wetlands are located along the northern boundary line. The site is in a primary recharge area for the principal aquifers. The applicant plans to utilize County water and a private septic system until County sewer capacity is available at the Northside Plant. As a condition for rezoning, the applicant proposes a building of 169,112 square foot gross floor area and the proposed uses will be any of 42 listed uses. All other minimum requirements of Federal, State and local rules will be met. A companion Special Use Permit will bind the proposed use and restrictions to this property. Planning Director Chris O?Keefe reported that between 2005 and 2006, average daily traffic volume just south of the site decreased by about 15%. The intersection with Porter?s Neck Road is currently signalized. A Traffic Impact Analysis was prepared for this project in conjunction with additional retail uses southwest of this site and road improvements will be required along Market Street as well as the extended Porter?s Neck Road. For purposes of the Traffic Impact Analysis, a home improvement store was shown in this location and was anticipated to generate approximately 4,000 average daily trips. Traffic impacts of other potential superstore uses in this location were not evaluated in the Traffic Impact Analysis. This site is adjacent to the proposed alignment of Plantation Road which would connect the Military Cutoff Extension and Murrayville Road to the Porter?s Neck area. Plantation Road is identified as a thoroughfare in the Long Range Transportation Plan. This proposal appears to be consistent with the strategies for the Transition classification. However, the suggestion of such a broad range of potential uses for the site makes the character of this request more consistent with general rezoning than a conditional district request. Staff feels the area is appropriate for intensive regional commercial development based on its proximity to major highways and established customer bases and would therefore recommend either (1) approval of the conditional district for only a building materials and garden supplies use in the proposed building, or (2) approval of a straight rezoning to B-2 Highway Business District. Planning Director O?Keefe read the following findings of facts into the record. 1. The Board must find that the use will not materially endanger the public health or safety where proposed and developed according to the plan as submitted and approved. A. Public water will serve the property. B. A private septic system may serve the project if County sewer capacity is not available from the Northside Wastewater Treatment Plant. C. The property accesses Market Street, an identified arterial via the intersection of Market Street and Porter?s Neck Road. D. Traffic counts decreased in the vicinity of this site between 2005 and 2006. E. Fire Service is available from the Ogden FD. F. The property is not located in a flood hazard area. G. Stormwater retention is shown on the site plan and must meet the design standards of the County?s storm water ordinance. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The property is zoned B-1 Neighborhood Business District. This request is made concurrent with conditional rezoning to CD (B-2) Highway Business District. B. The proposed range of uses is too broad to be construed as anything other than ?tentative? and therefore does not meet the spirit and intent of a conditional use district as described in Section 59.7-1. C. Petitioner proposes off-street parking that exceeds the requirements of Article VIII of the New Hanover County Zoning Ordinance by providing 547 spaces compared to 423 spaces required. D. Traffic circulation system will be via internal drives connecting to the extension of Porter?s Neck Road and must provide adequate access for emergency service vehicles. E. A traffic impact analysis was prepared in 2006 for NCDOT for this project and street improvements will be required by NCDOT for congestion management. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 143 F. The Special Highway Overlay District applies to two sides of this property. Buffers as required in Section 59.6 must be provided. The applicant has provided renderings to depict the approximate effectiveness of the proposed vegetative buffer to fully shield outside storage from view along the I-140 overlay. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. No evidence has been submitted that this project will decrease property values of adjacent parcels. B. Stormwater management must perform in compliance with the requirements of the County ordinance. 4. The Board must find that the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The 2006 Land Use Plan identifies this area as Transition, which provides for future intensive urban development on lands that have or will have urban services. B. Other commercial uses are prevalent in this vicinity, although none are of the magnitude of a regional superstore. C. The site plan proposes improving the Porter?s Neck Road extension to the southwestern property boundary which would accommodate Plantation Road as indicated in the Long Range Transportation Plan. If approved, Staff recommends the following: 1) the parking spaces provided in excess of the minimum required are to be constructed of pervious pavement; and 2) further limiting the range of uses. Staff notes that one finding of fact contradicts the purposes of conditional use district zoning and supports a general rezoning instead of conditional district approval. At the June 7, 2007 Planning Board meeting, the Planning Board voted 6 to 1 to recommend approval of the proposed request, including conditions of improving the access road to NCDOT standards along the southwest portion of the site and requiring pervious pavement for parking spaces in excess of minimum requirements. Chairman Caster asked if the Petitioner would like to speak on the request. Ken Shanklin, Attorney with Shanklin and Nichols representing ACI-Pine Ridge, presented an overview of the Lowes at Porter?s Neck project highlighting that it is a high quality development aesthetically pleasing to the public and will help alleviate traffic on Market Street with upgrades on Market Street pursuant to NCDOT. Storm water development has been designed pursuant to State, Local and County agencies. In answer to a question by Commissioner Davis, Neil Shepherd, representing Blue Ridge Engineering, reported that the proposed septic system will be located to the southwest of the proposed building and the surface water will stay on the left side of Market Street and not flow into Futch or Foy Creeks. Lyle Overcash, Traffic Engineer for the Petitioner, reported on the required NCDOT traffic improvements stating that the project will generate approximately 4,600 trips on an average day. Updated traffic counts completed in June 2007 show that with the addition of the proposed Lowes, without the traffic improvements, the level of traffic will remain at a ?C? in the morning and a ?D? in the afternoon. In answer to a question by Commissioner Kopp, Mr. Overcash reported there is another access to the shopping center to the south that is not signalized but there is no point of access to the west because of the existing wetlands. David Sneeden, Pine Ridge Properties, stated that they waited for the right project to put in this location and feel that the proposed Lowes will be a benefit to the community. Chairman Caster asked if anyone would like to speak in opposition to the request. Ronald Brink, President of the Porter?s Neck Homeowners Association, stated that he is representing 520 residents. They are not opposed to the project but they have traffic and safety concerns that there is only one entrance and exit and requested the Board delay approval until the proper infrastructure is in place. Ann Griffith, homeowner in the Porter?s Neck area, requested that the Board follow the I-140 Outer loop Task Force recommendations for the Porter?s Neck interchange stating that four years ago the committee members voiced their preference for B-1 Limited Transition classification which translates into a lower traffic volume for the area. Members felt that other business classifications would add to traffic issues, storm water runoff and potential flooding in the area. Mead Briggs, Porter?s Neck area homeowner, voiced his concern on the explosive amount of development and safety and traffic issues. More than one entrance is needed. David Bauereis, Porter?s Neck area homeowner, voiced his concern that the Petitioner has future plans for retail development of the adjoining property in addition to the Lowes. At the Planning Board meeting in June, the NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 144 Petitioner stated that the full development would generate 20,000 trips per day. The proposed project will result in traffic gridlock and requested the Board require additional entrances as part of the condition for approval. Philip Meiz, Avenel Homeowners Association, reported that he represents sixty-six homeowners and that they are opposed to the project due to safety and traffic concerns. He requested the Board not approve the project until another entrance is planned. John Jefferies, Futch Creek Road resident, voiced his concern about traffic safety issues with only one access being proposed. He requested the Board work with the developer to find a more suitable use for the property. Carl Robinson, Porter?s Neck area homeowner, requested the Board not rush the rezoning of the property stating concerns about quality of life and the protection of Futch Creek. Chairman Caster asked the Petitioner for rebuttal comments. Attorney Shanklin, stated that the proposed project is just one piece of the puzzle. Conditional Use District was chosen to give the Board control of the site. Jimmy Black, ACI-Pine Ridge, reported that they have recorded easements though the adjoining property to the south. Mr. Shepherd, clarified that the vote tonight has nothing to do with the development of the remaining 53 acres; already zoned B-1. The proposed project is a more restrictive use of the property generating less traffic than potential B-1 uses. Mr. Overcash, the Conditional Use District will give the Board control of the project; either specific or general. Chairman Caster asked the opposition for rebuttal comments. Dick Elmer, Porter?s Neck area homeowner, stated that one access is a disaster and requested the Board to fix it. Mr. Meiz reported that the Post Office will be cut off from access and requested the Board not approve the project. Mr. Robinson stated that he feels that the developer is threatening the residents with Wal-Mart. The objection of the residents is not the Lowes, but the insufficient infrastructure that is currently in place. Mr. Black reported that they are working with Mr. Scarafoni on additional road improvements and interconnectivity access. Hearing no other comments, Chairman Caster closed the Public Hearing and asked for direction from the Board. Commissioner Kopp commented that if he would vote to approve the rezoning one of the conditions would be that a Certificate of Occupancy would not be issued until the Northside Waste Water Treatment Plant is completed and that a well would be put in for irrigation purposes. He stated that he would like to see an additional entrance. Commissioner Pritchett voiced her concern that there is not place for an additional entrance and entrances to the south of the proposed project are not signalized. Commissioner Davis voiced his concern with traffic and only one entrance. Vice-Chairman Greer clarified that the requested CD (B-2) Conditional District Highway Business zoning will limit the use to building materials and garden supplies and the list of 42 uses; the current zoning of B-1 Neighborhood Business Zoning District can be done by right, without Board approval, and includes the use of a large retailer such as Wal-Mart. Motion: Vice-Chairman Greer MOVED, SECONDED by Chairman Caster, to approve the request by Shanklin and Nichols, PA, on behalf of ACI-Pine Ridge, LLC, to rezone approximately 16.2 acres of property located off North Market Street at Porter?s Neck Road in the Transition and Wetland Resource Protection Land Classifications from B-1 Neighborhood Business zoning district to CD (B-2) Conditional District Highway Business finding that the request is: 1) Consistent with the purposes and intent of the Transition and Conservation land classifications and the associated land use policies adopted in the 2006 Land Use Plan; and 2) reasonable and in the public interest to allow addition of acreage outside the flood plain to be converted to a higher intensity commercial use as outlined in a companion Special Use Permit with the conditions suggested by staff with no septic tank system and the public infrastructure as required. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 145 Substitute motion: Commissioner Kopp MOVED, SECONDED by Commissioner Davis, that the request by Shanklin and Nichols, PA, on behalf of ACI-Pine Ridge, LLC, to rezone approximately 16.2 acres of property located off North Market Street at Porter?s Neck Road in the Transition and Wetland Resource Protection Land Classifications from B-1 Neighborhood Business zoning district to CD (B-2) Conditional District Highway Business be continued for sixty days to allow the Petitioner and Planning Department staff to work with NCDOT to satisfy the need for a second entrance. Chairman Caster stated that the Petitioner has worked with NCDOT and that they have not required a second entrance. Chairman Caster asked Attorney Shanklin if the Petitioner would like to proceed with the request acknowledging that if the Board denies the project they will have to wait one year before bringing the request back to the Board. Break Chairman Caster called for a break from 10:19 p.m. until 10:22 p.m. Attorney Shanklin reported that the Petitioner would like to proceed with the request and that they agree with the findings of facts, and accept staff conditions and added condition of no septic tank system and the public infrastructure as required. Chairman Caster called for a vote on the substitute motion. Substitute Motion Vote: Upon vote, the MOTION CARRIED 4 to 1. Vice-Chairman Greer voted in opposition. ADOPTION OF RESOLUTION OF INTENT TO CLOSE FUTCHES AVENUE Principal Development Planner Sam Burgess reported that the New Hanover County Airport Authority has petitioned the County to close Futches Avenue. In a cursory review of the road closure petition, County Fire Services has indicated that they have no issues with the proposed closure of the road. County Engineering staff has indicated that they would like to see the road closed and converted to a 20 foot utility easement. Staff is requesting the Board adopt the resolution of intent to close Futches Avenue and that a Public Hearing on this question will be held on August 13, 2007 at 1:00 p.m. in the Human Resources Training Room at the New Hanover County Government Center. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to adopt the resolution of intent to close Futches Avenue and that a Public Hearing on this question will be held on August 13, 2007 at 1:00 p.m. in the Human Resources Training Room at the New Hanover County Government Center. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.5. APPROVAL OF HERITAGE PARK DRAINAGE IMPROVEMENT PROJECT Assistant County Manager Dave Weaver reported that in order to improve the drainage in the vicinity of the Heritage Park Community, staff is recommending a drainage project on the property of Bethany Church located on Castle Hayne Road. The proposed work consists of the clearing and grading of an approximately 30-foot wide by 420-foot long floodplain within a minimum 45-foot drainage easement. The easement location is restricted due to the proximity of the church's cemetery. Engineering staff has met with Mr. Roger Rivenbark of Bethany Church and secured the church's approval for the easement width and disturbed area. The church has agreed that they will be responsible for the maintenance of their portion of the drainage way. The following three bids were received for the creation of the floodplain: Roadbuilders, Inc. at $17,500 Gary Hauling and Grading at $18,500 Environmental Clearing & Land Maintenance at $21,890 Staff has estimated it will cost an additional $2,500 for clearing, debris removal and haul off of a foot bridge, concrete and other debris in the proposed work area and $2,000 for bank stabilization that is mandated by the U.S. Army Corps of Engineers once the project is complete. The total request for the completion of the Heritage Park Drainage Improvement Project on the property currently owned by Bethany Church is in the amount of $22,000. This project will mutually benefit the residents of Heritage Park, Bethany Church, other property owners upstream of this area and will help promote the health, safety and general welfare of the citizens of New Hanover County. Once the project is complete and stabilized, North Carolina Department of Transportation will coordinate the removal of the blockages from the culverts under Castle Hayne Road in order to restore flow. This project, considered to be of regional importance, will be funded from the drainage fund, which has a budget of $125,000. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 146 Staff recommends that the Board approve the expenditure of up to $22,000 for the drainage project on the Bethany Church property. Chairman Caster requested direction from the Board. Motion: Commissioner Kopp MOVED, SECONDED by Vice-Chairman Greer, to approve the expenditure of up to $22,000 for the Heritage Park drainage improvement project. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSIDERATION OF AMENDMENT TO STORMWATER MANAGEMENT ORDINANCE Assistant County Manager Dave Weaver reported that clarification is needed to the applicability of the New Hanover County Stormwater Management Ordinance. The Engineering Department is recommending a text amendment to the ordinance as follows: 1. Add new definition to Division 1. Generally, Section 23-282, Definitions, to read: Expansion means any activity that will result in the increase of impervious coverage of an existing developed area without significant modification of use. 2. Amend existing Division 6. New Development, Section 23-432 (e), Applicability, to read: Whenever the existing impervious surface is expanded as set forth in subsection (a) of this section, the expanded portion of the facilities shall comply with this article. Whenever the expansion results in a total of 25 percent or more of the site in overall impervious coverage, the project shall be considered redevelopment and must comply with subsection (b) of this section. Whenever the expansion equals or exceeds 50 percent of the existing impervious coverage, the project shall be considered new development and the entire project shall be required to comply with this article. In Section 23-282, adding the term ?Expansion? will apply to projects that do not fall under the category of new development or redevelopment. The amendment will also clarify Section 23-432(e) as it applies to site expansion. The current wording of Section 23-432(e) does not completely account for site expansion and incorrectly defines projects as redevelopment whenever the expansion equals or exceeds fifty percent of the existing development. Projects with new impervious surface that exceed fifty percent of the existing development should be considered new development and meet all the requirements of the article. The amendment will provide a means for sites to be permitted under the guidelines of expansion when the overall impervious coverage is less than twenty- five percent and as redevelopment where the expansion is more than twenty-five percent but less than fifty percent of existing impervious surface. Chairman Caster requested direction from the Board. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Kopp, to approve the amendment to the Stormwater Management Ordinance as recommended. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the amendment to the New Hanover County Code of Ordinances is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.6. MEETING RECESSED TO HOLD A REGULAR MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Chairman Caster convened from Regular Session at 10:43 p.m. to hold a meeting of the New Hanover County Water and Sewer District. Chairman Caster reconvened to Regular Session at 11:11 p.m. NON-AGENDA ITEMS Chairman Caster announced that time had been reserved to allow the public to present an item that was not listed on the regular agenda. He requested all persons speaking to limit their remarks to three minutes. Robert Parr voiced his concern on the Special Use Permit process and how and when information is presented to the Board stating that the opinion of citizens should carry as much weight as developers and the developers? attorneys. He referenced a Decibel Meter Readings report that was given to the Board before the start of tonight?s meeting stating that he did not feel that the Board should be allowed to accept information that is not included in the agenda packet from the Planning Department. County Attorney Copley clarified that it is permissible for the Commissioners to request additional information to aid them in their quasi-judicial hearing deliberations. She clarified that Vice-Chairman Greer requested the Decibel Meter Readings report from staff at the Agenda Review meeting that was held on July 5, 2007 and the information was handed to them prior to the meeting from Sheriff Causey. ADDITIONAL ITEM ADOPTION OF RESOLUTION OPPOSING HOUSE BILL 1587 Chairman Caster reported the North Carolina Association of County Commissioners has opposed House Bill 1587. A draft resolution opposing the Bill is available for the Board?s consideration. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, JULY 9, 2007 PAGE 147 The Bill attempts to prevent cities from providing both wired and wireless communications services such as cable TV, telephone and broadband internet services. Although the Bill does not affect counties because counties do not have the authority to operate a cable TV system, it is a concern due to the intrusion of authorized local government services. After brief discussion, Chairman Caster requested direction from the Board. Motion: Commissioner Kopp MOVED, SECONDED by Commissioner Pritchett, to adopt the resolution opposing House Bill 1587. Upon vote, the MOTION CARRIED 4 TO 1. Vice-Chairman Greer voted in opposition. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 26.7. ADJOURNMENT There being no further business, Chairman Caster called for a motion to adjourn the meeting. Motion: Commissioner Pritchett MOVED, SECONDED by Vice-Chairman Greer, to adjourn the meeting. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Caster adjourned the meeting at 11:30 p.m. Respectfully submitted, Sheila L. Schult Clerk to the Board