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2000-05-08 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 931 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, May 8,2000, at 6:30 p.m. in the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Members present were: Commissioner Buzz Birzenieks; Commissioner Ted Davis, Jr; Commissioner Charles R. Howell; Vice-Chairman Robert G. Greer; Chairman William A. Caster; County Manager, Allen 0 'Neal; County Attorney, Wanda M. Copley; and Clerk to the Board, Lucie F. Harrell. Chairman Caster called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Clerk to the Board, Lucie F. Harrell, gave the invocation. Commissioner Davis led the audience in the Pledge of Allegiance to the Flag. 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 or comment on an item listed on the Consent Agenda. He requested all persons speaking to limit their remarks to three minutes. Request by Mr. Phillip G. Tripp to Continue Public Hearing #6.7, A Public Hearing to Consider Rezoning 9.65 Acres Located in the 2500 Block of Castle Hayne Road from AR Airport Residential to B-2 Highway Business and AI Airport Industrial, Until the June 5, 2000 Meeting Mr. Phillip G. Tripp, representing Allen May, requested the Board to continue this item until June 5, 2000, to allow more time to acquire additional information on the proposed rezoning. He advised that adjacent property owners had been contacted and no concern was expressed for continuing the hearing. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Howell to continue Public Hearing #6.7 until June 5, 2000. Upon vote, the MOTION CARRIED UNANIMOUSLY. APPROVAL OF CONSENT AGENDA Chairman Caster announced that Mr. Doug Bowers could not attend the meeting to receive the retirement Resolution of Appreciation because he was on vacation. He requested the Board to adopt the resolution as part of the Consent Agenda and present it to Mr. Bowers at a later date. Commissioner Davis referenced Consent Agenda Item 12 and asked if funding would be provided by the State. Deputy County Manager Atkinson responded that funding would be allocated by the State. Chairman Caster requested that Consent Agenda Item 9, Certification ofthe Election Results, be removed from the Consent Agenda and placed on the Regular Agenda for approval. Chairman Caster called for a motion to adopt the Consent Agenda. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Howell to remove Consent Agenda Item 9 to the Regular Agenda, adopt the Resolution of Appreciation for Mr. Doug Bowers, and approve the remaining Consent Agenda items as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes The Commissioners approved the following sets of minutes as presented by the Clerk to the Board: NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 932 Regular Meeting Regular Meeting Board of Education Work Session March 13, 2000 April 17, 2000 March 30,2000 Adoption of Resolution Awarding Bid #00-0240 and Approving Contract #00-0240 for NOxOUT Reagent - W ASTEC Facility The Commissioners adopted a resolution awarding Bid # 00-0240 to PCS Sales in the amount of $58,800 for NOxOUT Reagent for the W ASTEC Facility. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVI, Page 8. Adoption of Resolution to Award of Bid #00-0315 to Bob King Pontiac GMC, Inc. and Approval of Contract to Purchase a GMC Yukon for the Emergency Management Department The Commissioners adopted a resolution awarding Bid #00-0315 in the amount of$35,438 to Bob King Pontiac GMC, Inc., the only responsible bidder, in the amount of $35,438 for the purchase of a GMC Yukon for the Emergency Management Department. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVI, Page 8. Adoption of Resolution to Award Bid # 00-0302 to dMS Services, Inc. and Approval of Contract # 00-0302 for In-Home Aide Services Provided by the Department of Aging The Commissioners adopted a resolution awarding Bid #00-0302 to dMS Services, Inc. the lowest responsible bidder, to provide in-home aide services in a unit cost of $14.00 for Level I and $14.50 for Levels II and III care. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVI, Page 8. Approval of Easement Deed Between New Hanover County and St. James Parish for Airlie Gardens The Commissioners approved an easement deed between New Hanover County and St. James Parish to grant respective easements to allow for entrance to and from Airlie Gardens and the Lebanon Chapel. A copy of the easement deed is on file in the Legal Department. Approval of Agreement Between New Hanover County and St. James Parish on Policies and Procedures for St. James Access to Airlie Gardens The Commissioners approved an agreement between New Hanover County and St. James Parish establishing policies and procedures for St. James to have access through Airlie Gardens to get to the Lebanon Chapel. A copy of the agreement is on file in the Legal Department. Approval of Request to Designate the Department of Aging as the Lead Agency for Home and Community Care Block Grant Funds 2000/2001, Approval of Receipt of Home and Community Care Block Grant Funds and Approval of Receipts of Title 3F Health Grant Monies The Commissioners approved the request to designate the Department of Aging as the Lead Agency for Home and Community Block Grant Services in New Hanover County, approved the request to accept the Home and Community Block Grant Advisory Committee's recommendations of fund distribution and services, and accepted the FY 2000/2001 Home and Community Care Block NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 933 Grant funds in the amount of $724,670 and the Title III F Health Promotion monies in the amount of$8,478. Approval Gemplus, Inc. Purchase Order The Commissioners accepted a gift from Gemplus, Inc. for a book security system for the Northeast Branch Library and unanimously approved the associated purchase order. The gift is valued at more than $40,000. Adoption of Proclamation Designating May, 2000 as "Teen Pregnancy Prevention Month" The Commissioners adopted a proclamation designating May, 2000 as "Teen Pregnancy Prevention Month" and encouraged families to join in and support the efforts of the New Hanover Adolescent Health Council. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVI, Page 8. Approval of Budget Amendment #200-33 Controlled Substance ADJUSTMENT DEBIT CREDIT Controlled Substance Tax Capital Project Expense $2,875 $2,875 Explanation: To increase budget for additional revenue received 3-22-00. Controlled Substance tax funds are budgeted as received and must be used for law enforcement activities as the Sheriff deems necessary. Approval of Recommendation from Juvenile Crime Prevention Council for Office of Juvenile Justice Funds for FY July 1,2000 through June 30, 2001 The Commissioners approved the recommendation from the Juvenile Crime Prevention Council for Office ofJuvenile Justice Funds in the amount of$419,050 for FY July 2,2000 through June 30, 2001. The Juvenile Crime Prevention Council (JCPC) is responsible for making recommendations to the Board of County Commissioners for funding provided by the Office of Juvenile Justice on an annual basis. The JCPC met on April 28, 2000, and recommended funding the following agencies for the fiscal year beginning July 1, 2000. This recommendation must be submitted to the State for final approval. Requested Recommended Pathways Program Juvenile Restitution** Intensive Family Based Intervention Juvenile Psych Services $309,284 112,775 100,000 94,862 $224,050 50,000 50,000 94,862 TOTAL $616,921 $419,050 **No agency has been designated to carry out the Juvenile Restitution Program as of this date. The $50,000 has been set aside to fund the program at a later date if necessary. PRESENTATION OF JOHN M. DOLAN VOLUNTEER FIREFIGHTER OF THE YEAR AWARD Chairman Caster requested Commissioner Howell, the Board's representative on the Fire Commission, to present the award. Commissioner Howell requested the members of the Dolan family to step forward to participate in the presentation of the John M. Dolan Firefighter of the Y ear Award. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 934 Commissioner Howell, on behalf of the Board, presented a plaque to Mr. Bill Pearce, Chief of the Ogden Volunteer Fire Department, and congratulated him for receiving this special award. Commissioner Howell stated that Chief Pearce joined the Fire Service in 1986 at Wrightsville Beach where he was selected Firefighter of the Year. He joined the Ogden Volunteer Fire Department in 1996 as a Lieutenant and was promoted to Chief in 1999. He has given many hours of time to receive training and become a Firefighter, Level II. His dedication to the Fire Service is truly outstanding. A round of applause was given to Chief Pearce. ADOPTION OF PROCLAMATION DESIGNATING MAY, 2000 AS FOSTER PARENT APPRECIA TION MONTH Chairman Caster read a proclamation designating the month of May, 2000 as "Foster Parent Appreciation Month" in New Hanover County. He requested a motion to adopt the proclamation. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Howell to adopt a proclamation designating the month of May, 2000 as "Foster Parent Appreciation Month" in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSL Y. Chairman Caster, on behalf of the Board, requested the foster parents present to step forward to receive the proclamation. A round of applause was given to the foster parents who have helped so many children in need of a safe place to stay. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVI, Page 8. APPROVAL OF RECOMMENDATION FOR JAIL EXPEDITER FOR THE NEW LAW ENFORCEMENT EXPANSION County Manager O'Neal reported that the Review Committee met today and heard presentations from four companies that provide construction expediter services. He requested the Board to authorize Staff to negotiate a contract with Miller Building Corporation to serve as the project expediter for the new Jail. This local company has been in the construction business for over 50 years and has an excellent reputation in judicial and jail construction. The company knows the local market and will be able to identify minority and small sub-contractors to work on the project which will keep a significant amount of money in the local economy. Commissioner Davis asked how the Board could determine that hiring Miller Building Corporation would save money for the jail project. County Manager O'Neal responded that after hearing and interviewing each firm, it was apparent that a project expediter would save money for the County. The construction process can move more quickly by assisting the architect to split the project into smaller units, which becomes a matter of coordination and timing. The scheduling models presented to the Review Committee showed that money could be saved by speeding up the project, which will eliminate having to transport prisoners out of the county and state. Commissioner Davis asked what other firms submitted proposals. County Manager O'Neal responded that the following companies presented proposals: (1) Construction Control Corporation based in Cary, N. C.; 1. A. Jones Construction based in Charlotte, N. C.; and (3) F.M. Thompson and Turner Construction with Thompson based in Charlotte, and Turner based in Richmond, Virginia. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 935 Discussion was held on the fee that would be charged by Miller Building Corporation. County Manager O'Neal explained that a fee had not been established. The Board is being requested to authorize Staff to negotiate a contract with Miller Building Corporation. The project expediter fee ranges from 2% to 6% depending on the scope of work. County Manager O'Neal said that he would not recommend approval of a project expediter contract if money cannot be saved for New Hanover County. Commissioner Birzenieks said while attending a wedding in Richmond, Virginia, he met an architect that is constructing a jail for Mecklenburg County. After discussion of the project expediter concept, the architect said after the number of change orders required for the project, he would be in favor of hiring a project expediter. Commissioner Davis commented on his respect for Miller Building Corporation and the other firms, but stated personally he could not represent the best interest of the taxpayers without knowing the fee to be charged by Miller Building Corporation. He said it is impossible to know that money will be saved without having an outline ofprojected savings that can be compared to the fee charged. When this issue was first discussed, he felt that the proposal should include qualifications and the fee to be charged. County Manager O'Neal explained that a project expediter will review architectural drawings, engineering requirements, etc. at the beginning of the project, which will allow for items to be resolved before the change order stage. Vice-Chairman Greer expressed regret that Commissioner Davis could not attend the interview process with the four firms. He said that each company clearly explained the concept and how the process will save money for New Hanover County. Commissioner Davis asked County Attorney Copley if she was satisfied that North Carolina law will allow the project expediter to perform the necessary actions to speed up the process. County Attorney Copley responded that the scope of services for the project expediter is in compliance with the North Carolina General Statutes. Chairman Caster requested a motion. Motion: Commissioner Birzenieks MOVED, SECONDED by Vice-Chairman Greer to authorize Staff to negotiate a contract with Miller Building Corporation to serve as the project expediter for the new Jail with the contract being submitted to the Board for final approval. Upon vote, the MOTION CARRIED by a 4 to 1 vote as follows: Voting Aye: Commissioner Birzenieks Commissioner Howell Vice Chairman Greer Chairman Caster Voting Nay: Commissioner Davis APPROVAL OF CONTRACT #99-0359 FOR ENGINEERING SERVICES FOR THE MASON'S INLET PROJECT AND RELATED BUDGET AMENDMENT #99-0359 Project Engineer, Greg Thompson, reported that New Hanover County was currently involved in the process of obtaining all the appropriate permits for the Mason's Inlet Project. The regulatory agencies responsible for issuing the permits have requested a significant amount of information as part of their review. Some of the information requested was not considered when the original project scope was identified for the County's Engineering subcontractor, Applied Technology and Management (ATM). As a result, Staff is requesting approval of a budget amendment in the amount of $100,000 to pay ATM for additional engineering services required during the permitting reVIew process. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 936 Commissioner Davis asked if these services have already been performed, and if so, why was the Board not informed about the change orders before the work was performed. Project Engineer Thompson responded that most of the work had been completed. He said the Board was not informed in advance because the time frame for the project dictated that these services had to be performed in order to stay within the 2000 dredging schedule. This creates a week-by-week process. Funds originally designated for the construction administration portion have been used to cover the additional work. Chairman Caster explained that in order to comply to the dredging schedule of the Corps of Engineers, the work had to be performed by ATM as quickly as possible. Vice-Chairman Greer stressed the importance of everyone understanding that funding for this project is not coming from the property ad valorem tax fund but from the Room Occupancy Tax that is used for beach renourishment. This fund will be reimbursed by the sale of sand and assessments to the benefitted property owners. Chairman Caster called for a motion. Motion: Commissioner Howell MOVED, SECONDED by Commissioner Greer to approve the expanded Contract #99-0359 and the following budget amendment in the amount of$1 00,000 to pay ATM for additional services performed during the permitting review process. Upon vote, the MOTION CARRIED UNANIMOUSLY. Commissioner Davis stated in the future, he would like for Staff to inform the Board about change orders before the work is performed. Budget Amendment #2000-31 - Mason Inlet Project/Room Occupancy Tax Adjustment Debit Credit Transfer in from Room Occupancy Tax Fund Capital Project Expense $100,000 $100,000 Room Occupancy Tax Fund Appropriate Fund Balance Transfer to Capital Projects $100,000 $100,000 Explanation: To budget additional transfer from the Room Occupancy Tax fund to the Mason Inlet Project. ACCEPTANCE OF ENVIRONMENTAL ASSESSMENT FOR THE MASON INLET RELOCA TION PROJECT Assistant County Manager, Dave Weaver, reported that the final Environmental Assessment for the Mason Inlet Relocation Project has been completed and submitted to the Corps of Engineers and other agencies for review. He requested the Board to accept the Environmental Assessment with the understanding of county requirements in the inlet management plan. Commissioner Howell emphasized the fact that maintenance of the inlet will be paid for by the sale of sand and assessments paid by the benefitted property owners. No county funding is involved in the project. Commissioner Davis asked if the property owners have any idea of the amount of money that will be involved with maintaining the inlet. Mr. Frank Pinkston, representing the Mason Inlet Preservation Group (MIPG), reported that all property owners and the Board of Directors of the Shell Island Homeowners Association have NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 937 understood from the beginning that a maintenance program would be required to maintain the inlet in the new location. The frequency of the maintenance has been questioned, but this will be based on the design of the dredging project. The benefitted property owners will carry the responsibility of the inlet. The property owners are aware of the cost that could be involved, but Figure Eight Island will always need sand for beach renourishment. The sand from maintenance dredging projects will be sold to Figure Eight Island and assessments to the benefitted property owners will pay for the maintenance cost. A letter was submitted to the Corps of Engineers informing them that the property owners recognize the need for continued maintenance and they will accept the responsibility of the financial burden. Commissioner Birzenieks expressed concern for the State making a mistake in the permit by not calculating the migration of the inlet southward at an appropriate rate. The Corps of Engineers dredges behind Figure Eight Island and forces the inlet to migrate further south and now both the state and federal governments are asking New Hanover County to pay for the project. It is not fair for local taxpayers to be requested to pay for projects that should be funded by the state and federal governments. Mr. Pinkston agreed with Commissioner Birzenieks but stated the property owners are to be commended for finding a solution without further cost to the taxpayers. The local government is not being requested to pay for the project. At the beginning of the project, MIPG assessed all property owners and 78% agreed to find a solution and pay for the cost. Chairman Caster called for a motion to approve the Environmental Assessment. Commissioner Davis asked if any other action was being approved when accepting the Environmental Assessment report. Assistant County Manager Weaver explained that the report also includes the Inlet Management Plan, a description of the mitigation action required to replace dredged wetlands, and required monitoring of the project. Commissioner Davis asked if the Board votes to accept the Environmental Assessment, does this mean the County is approving the maintenance plan and the associated cost. Assistant County Manager Weaver explained that the final budget figure for the maintenance plan could not be determined until the project is bid; however, the Board would be approving the plan and cost estimate in concept. Discussion was followed on how inlets to be maintained by the Corps of Engineers are selected. Assistant County Manager Weaver explained that inlets with commercial navigation use are accepted for maintenance by the Corps, such as the Masonboro Inlet. Since there is no commercial use of Mason Inlet, the Corps will not maintain the inlet. Chairman Caster called for a motion to accept the Environmental Assessment. Motion: Vice Chairman Greer MOVED, SECONDED, by Commissioner Howell, to accept the Environmental Assessment. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Howell Vice Chairman Greer Chairman Caster Voting Nay: Commissioner Davis APPROVAL OF PROJECT AGREEMENT WITH THE CORPS OF ENGINEERS FOR THE MASON INLET PROJECT Assistant County Manager Weaver presented an agreement between the Corps of Engineers NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 938 and New Hanover County. The term of the agreement is 30 years, and New Hanover County will be responsible for funding and performing the maintenance dredging as specified in the Environmental Assessment. The funding will be reimbursed through the sale of sand and assessments of benefitted property owners. Vice-Chairman Greer asked if the funding was appropriated from the County's general fund. Assistant County Manager Weaver said the money will be funded from the Room Occupancy Tax fund with reimbursement by the sale of sand and assessment to benefitted property owners. Commissioner Davis asked if there was a guarantee that the sand can be sold. Assistant County Manager Weaver answered there was no guarantee that the sand could be sold; however, an excellent quality and resource of sand will be available from dredging near Figure Eight Island, which would be ideal for the island's beach renourishment. Commissioner Davis asked if all the sand that is dredged can be used for beach renourishment. Ms. Karen Erickson informed the Board that 100% of the sand could be used. If any dredged sand is not beach quality, it will be placed in the Corps' disposal site. The major sand will be collected in the sedimentation trap that is designed to capture 250,000 cubic yards of sand with the inlet channel itself holding an additional 150,000 cubic yards of sand. Commissioner Davis asked Assistant County Manager Weaver if he was comfortable with using Room Occupancy Tax funds to pay the up-front cost ofthe project when there is the possibility that a severe hurricane could strike the area and a great deal of money would be needed to refurbish other beaches. Assistant County Manager Weaver responded that he felt comfortable; however, the solution proposed is not great, but it is the best way to approach the problem. A severe hurricane could completely change the picture. At this point, Staff has no other alternative, but the proposal presented. Commissioner Davis asked what will happen when the agreement expires in 30 years. Assistant County Manager responded the County would not be obligated to continue maintenance dredging when the 30 year agreement expires. Chairman Caster said this is a win-win situation because the benefitted property owners are willing to pay for the project. Approval of the project will not only assist the property owners, but provide another inlet for boaters and improve water quality. Discussion was held on whether there was scientific evidence that water quality would be improved. Assistant County Manager Weaver commented on the success of flushing out the water in Futch Creek to improve water quality, but stated from a scientific and technical point of view, it has not been proven that the water quality will be improved in Mason Creek. From a common sense point of view, the water quality should be improved. Commissioner Davis expressed concern for the money involved in the project and the fear that New Hanover County will have to come up with a huge sum of money in the future. Chairman Caster called for a motion. Motion: Commissioner Howell MOVED, SECONDED by Vice-Chairman Greer to approve the project agreement between the Corps of Engineers and New Hanover County for the Mason Inlet Relocation Project and authorize the Chairman to execute the necessary contract documents. Upon vote, the MOTION CARRIED AS FOLLOWS: NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 939 Voting Aye: Commissioner Birzenieks Commissioner Howell Vice Chairman Greer Chairman Caster Voting Nay: Commissioner Davis A copy of the agreement is on file in the Legal Department. Assistant County Manager Weaver reported that the Corps of Engineers will decide if a Public Hearing should be held on the Environmental Assessment. After discussing this issue with the Corps, they have no problem with the County holding a Public Hearing. With the time constraints on the project, the County could schedule a Public Hearing within a few weeks and save at least a month of time. The Public Hearing would be a joint hearing inviting representatives from the Corps of Engineers and State. Thirty days notice would be required and 15 days after the hearing written comments would have to be submitted with preparation of a brief report. A verbatim transcript would have to be prepared. Consensus: After discussion, it was the consensus of the Board to schedule a Public Hearing on Wednesday, June 21, 2000, at 7:00 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. PUBLIC HEARING TO SOLICIT PROPOSALS FOR AN INFRASTRUCTURE GRANT APPLICATION FOR COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM (CDBG) Chairman Caster opened the Public Hearing. Staff Planner, Wanda Coston, reported that New Hanover County is eligible to apply for a CDBG grant up to $850,000 from the N. C. Department of Commerce, Division of Community Assistance. These funds will be available through the infrastructure category ofthe CDBG Program. In order to meet the May 26, 2000 deadline, a Public Hearing is required to solicit proposals and recommend projects that may be eligible for funding. Eligible proposals and lor projects will be targeted toward the elimination of on-site water and wastewater problems in residential neighborhoods. Chairman Caster asked if anyone from the public would like to present a proposal. No proposals were presented. Chairman Caster closed the Public Hearing. Staff Planner Coston reported after reviewing infrastructure needs in the unincorporated county, Staff would like to submit a proposal for a portion of the Wrightsboro area near the proposed construction of the Outer Loop. The residents in this area are in need of sewer service. The project will be comprised of two components: Area I, Chair Road and Area II, Rockhill Road. Commissioner Howell asked if this was the same area referenced at a NCDOT meeting. County Engineer, Wyatt Blanchard, responded this was the same area, and the infrastructure proposal will be coordinated with the NCDOT project. Motion: Vice Chairman Greer MOVED, SECONDED by Commissioner Howell, to authorize the Planning Staff to file a Community Development Block Grant application up to $850,000 from the N. C. Department of Commerce, Division of Community Assistance for Chair Road and Rockhill Road in the Wrightsboro area. Upon vote, the MOTION CARRIED UNANIMOUSL Y. BREAK Chairman Caster called a break from 7:25 p.m. until 7:45 p.m. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 940 PUBLIC HEARING TO CONSIDER A REQUEST BY JOE TAYLOR, ATTORNEY FOR Z-1 COMMERCIAL PROPERTIES, LLC, TO REZONE 56.45 ACRES LOCATED DUE NORTH OF MONKEY JUNCTION AND FRONTING ON SOUTH COLLEGE AND CAROLINA BEACH ROADS FROM R-15 RESIDENTIAL TO B-2 HIGHWAY BUSINESS AND CONDITIONAL USE (B-2) (Z-697, 03/00) Commissioner Birzenieks spoke on the Comprehensive Land Use Plan that was unanimously approved by the Wilmington City Council and New Hanover County Board of Commissioners and stated if a request is not compatible with the Land Use Plan, he would deny the request. He asked if the Commissioners had to listen to a rezoning request when it does not comply to the Land Use Plan. Commissioner Davis agreed with Commissioner Birzenieks but stated the Land Use Plan is a policy, not an ordinance; therefore, some exceptions could exist. Chairman Caster opened the Public Hearing and announced that a conditional use district requires a quasi-judicial hearing; therefore, any persons wishing to speak must be sworn in by the Clerk to the Board. The following persons were sworn in: Dexter Hayes Joe Taylor Ramey Kemp Laura Padgett Scott McGee Richard Collier 1. Keith Calder Planning Director Dexter Hayes explained that the proposed rezoning is a two-part petition. The Board should consider and take action on the zoning change as part one, and if approved, take a separate action on issuance ofa Special Use Permit as part two. He reported the original petition consists of 56.45 acres north of Monkey Junction with road frontage on South College Road and Carolina Beach Road. The land classification is "Developed", which means the areas are developed at a density approaching 1,500 dwelling units per square mile. Urban services are already in place. Slides were presented showing the frontage, rear, and adjacent businesses and residential properties located on South College and Carolina Beach Road. Planning Director Hayes reported at the Planning Board meeting on March 2, 2000, the petitioner asked for a continuance in order to pursue a conditional use zoning as recommended by Staff. The petitioner has amended the request to conditional use zoning for Parcels 1-4, which consists of 40.9 acres. The rezoning request for the remaining parcels is B-2 Highway Business. At the Planning Board meeting held on April 5, 2000, the petitioner provided a detailed presentation about the proposed shopping center project. This will be a multi-use development with approximately 444,000 square feet of retail, restaurant and office space. The primary issues discussed were traffic, storm water management, and permitted uses. Several people spoke in favor of the request and a few people expressed concern about traffic impacts. No one spoke in opposition to the request. The Planning Board voted on three different motions concerning this petition. They voted unanimously to approve the Conditional Use B-2 proposal with 12 conditions. The Planning Board also voted 3-1 on a second motion to approve lots 7-14 for B-2 Highway Business, which is the property that fronts Carolina Beach Road. After further discussion, the Planning Board voted 3 to 1 to deny the request to rezone lots 5 and 6 to B-2 Highway Business. The petitioner agreed to the 12 conditions recommended by Staff as listed below. The petitioner also agreed to the Planning Board's recommendation to eliminate HotelslMotels and Resort NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 941 HotelslMotels from the permitted use table for the entire Conditional Use area. The Planning Board also amended the permitted use table for out-parcels 1 and 2 on College Road to be more restrictive. 1. No additional curb cuts on College Road should be permitted for the out parcels. 2. Improve existing service road running between South College Road and Carolina Beach Road to collector road status (36 feet minimum) with added sidewalk. 3. Provide sidewalk along main entrance drive to allow for pedestrian circulation throughout the development. 4. Internal drive aisles should be aligned to decrease traffic conflicts. 5. Lighting should be directed internally to the project to protect adjacent residential areas. 6. Landscaping should be provided between the buildings and the drive aisles in accordance with the City standards for large scale retail developments. 7. Add landscape islands at the ends of parking rows including those with handicapped spaces. 8. Incorporate the existing Sneeden Center into the design as much as possible through orientation and aligning drive aisles and entrances to existing uses. 9. Several clusters of trees should be preserved in the northeast corner of the site. 10. Provide road stubs to all parcels included in this rezoning request and to the Weaver property to the west. 11. The two out-parcels in the northeast corner should be limited to 0&1 uses to provide better transition to the neighborhood. 12. Large interior parking bays need to provide some drive aisle connections. Planning Director Hayes presented the following preliminary findings: 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 based upon the following findings: A. The subject property is served by County sewer and Community water. B. The site is located in the Myrtle Grove Volunteer Fire Department District. C. Access to the site is proposed in two locations on South College and in four locations on Carolina Beach Road. The applicant's traffic impact analysis proposes the addition of both right and left hand turn lanes in several locations and proposes a signalized entrance on South College Road across from the existing Library site. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A. A site plan has been submitted in accordance with section 59.7-3 of the zoning ordinance. B. All setbacks and buffer requirements can be met. C. Based on the County maps, no Conservation Resources have been identified. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 942 However, some pockets of 404 wetlands do exist and will need to be inspected by the Army Corps of Engineers. D. Not all of the significant trees have been located on site. Although much of the site was disturbed by the old softball fields, the County aerial photograph indicates that most of the significant vegetation exists on the eastern parcels of the site. 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 based upon the following findings: A. Surrounding land use and zoning is a combination of residential, commercial and institutional. South of the site at the intersection of South College Road and Carolina Beach Road is a B-2 Highway business district. There is an R-15 Residential District abutting the northern property line and the western property line. There is an existing church in the R-15 zone abutting the northern boundary. B. Across South College Road to the east there is the Greenbriar Subdivision to the north, a doctors office directly across the street, the Myrtle Grove Branch Library located south of the doctors office. Going further south, the office and institutional uses along the east side of College Road give way to a B-2 Highway Business District at the intersection. C. Across Carolina Beach Road from the subject site is a B-2 Highway business district occupied by several retail stores. Adjacent to the B-2 District is an R-l 0 Residential District occupied by the Royal Palms Mobile Home Park. 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 ofN ew Hanover County based upon the following findings: A. The County's comprehensive plan recommends locating "regional commercial nodes at major intersections to accommodate uses that serve a regional market." B. A commercial node in this location would intercept traffic from the south going to other retail centers further north and would also attract some traffic from the northern parts of the County. Planning Director Hayes reported there were concerns about large retail centers accelerating the need for a large interchange at the location. Meetings are being held with the NCDOT about providing signals that will be timed at the Monkey Junction intersection. Discussion was held on the amount of additional traffic that will be generated if the request is approved. Planning Director Hayes advised that existing traffic counts on Carolina Beach Road and South College Road are 57,000 trips per day. The proposed project will generate approximately 14,000 new trips through the Monkey Junction Intersection, which represents 25% of existing traffic. Commissioner Davis asked Planning Director Hayes if he was comfortable with the impact of the project on Mott's Creek. Planning Director Hayes commented on the existing retention pond behind the car wash and stated that a large pond is being proposed near the Lowe's Center. There is also a plan to place a retention pond behind the shopping center. Engineering details on the drainage have not been completed. If all projects in the plan were being constructed at the same time under the same schedule, a larger regional storm water treatment system could be required for this basin, which flows into Mott's Creek. However, the projects will not be developed at one time. Chairman Caster asked if the petitioner would like to speak NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 943 Attorney Joe Taylor, representing Z-1 Commercial Properties, LLC, presented the history of the project and stated a traffic engineer has studied and performed traffic studies of the area. The traffic figures in Staff's recommendation are inaccurate. This project was originally planned as a straight B-2 rezoning and the traffic engineer was instructed to assume the maximum of development. On this basis, the traffic study yielded a primary trip generation of 7,400 traffic trips per day. However, this plan has been scrapped and the traffic generation in the new plan is substantially less. The traffic engineer will address this issue when a presentation is made. Attorney Taylor reported the proposed project consists of two requests: (1) Conditional Use Highway Business which involves Tracts 1,2, 3,and 4 comprised of approximately 40 acres; and (2) straight B-2 Business zoning for Tracts 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14. In January 2000, a petition was submitted to rezone the entire 14 tracts to B-2 Business zoning. Several community meetings have been held. A facility was rented for the first meeting and notices were sent to all adjoining subdivisions, businesses in the area, and immediate adjoining facilities. There was a large attendance at the meeting and various issues were discussed with many good ideas received from persons attending the meeting. Following that meeting the Planning Staff issued the preliminary summary findings of the requests. It was apparent that Staff and the neighbors felt uneasy about a tract of this size being zoned B-2 Business. The Planning Staff preferred a conditional use district to see how the site would be developed. A great deal of study was performed at the March meeting of the Planning Board, a continuance was requested to re-file the petition with conditional use and B-2 Business use. Notices were sent to all surrounding business and property owners. The second meeting was well attended and the residents understood the plan and many of the suggestions made by the neighborhoods were incorporated into the petition. At the April 6, 2000 meeting of the Planning Board, discussion occurred on the uses within the conditional use district. The Planning Board requested to eliminate hotelslmotels and resort hotelslmotels from the permitted use table for the entire Conditional Use area. The Planning Board also amended the permitted use table for out-parcels 1 and 2 on College Road to be more restrictive and presented 12 conditions. The applicants agreed to the changes in permitted uses and the 12 conditions recommended by the Planning Board. There was no community opposition to the project, which shows the quality of the proposed project. The needs and wishes of the community have been addressed. Attorney Taylor commented on the actions taken by the Planning Board and said that a lengthy discussion was held on Tracts 5 and 6. The Planning Board did not object to the B-2 Business use, but they were concerned about the tracts being zoned as conditional use without a plan for those sites. It is the opinion of the applicant, that these two tracts should be zoned B-2 Business. On tracts 1, 2, 3, and 4, the plan for the Lowe's store has been drawn and there are no set plans for the remaining buildings. The applicant and community have agreed on a set of values and uses for the particular properties. The Lowe's store is set back 900 feet from the road and the four out-parcel buildings are set back from 220 to 260 feet. The major stand of trees will be preserved and there will be a great deal of green space, which means that you will not see a strip shopping center but a filtered view through the trees and natural vegetation that borders the road. There are substantial green ways in between the buildings and highway along with parking. This was done at the request of the neighbors and the church. Creative storm water retention methods will be used, and the site should become a show place for commercial development in the area. Attorney Taylor requested the Board of County Commissioners to adopt the findings as presented by the Planning Director and to adopt the 12 recommendations of the Planning Board for the conditional use tracts. This use adjoins an existing commercial node and has all major accesses to thoroughfares, police and fire protection, and major utilities. Additional traffic lanes will be added in coordination with the Department of Transportation. The proposed use meets all conditions and specifications of the New Hanover County Zoning Ordinance and the property is properly classified for this use under policies for growth and development with all buffers and setbacks met. The property is classified as Urban Transition on the Land Classification Map. This classification allows intensive urban development, and since the property is provided with all necessary utilities, it is consistent with the County's standards. The use will not substantially injure or devalue adjoining NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 944 properties. The property is surrounded by two thoroughfares on two sides and is in an existing B-1 commercial node with the church on the one side, which will be screened and buffered. The location and character of use will be in harmony with the area in which it is to be located and in the general conformity with the plan of development for New Hanover County as defined in the Planning Director's preliminary findings. The proposed use will be a logical extension of this B-2 Business zone, and it will limit the need for further commercial zoning along College Road, which is an advantage. The use is in harmony with the general development in this area and the property cannot be residentially developed. The proposed plan is preferable to developing a huge multi-family apartment complex that will contribute more traffic. The plan follows the Wilmington-New Hanover County Comprehensive Land Use Plan, which recommends location of these types of uses in an existing commercial node. The proposed traffic signal will allow all subdivisions on the other side of the road to better access their subdivisions. In concluding the presentation, Attorney Taylor advised that the following persons will present brief reports regarding the project: 1. Mr. Richard Collier, Zimmer Development Company 2. Mr. Ramey Kemp, a representative of Kemp & Associates in Raleigh, N. C., known for his expertise in traffic while working for the N. C. Department of Transportation. 3. Mr. Scott McGee, Ozark Engineering, representing Lowe's, Inc. Mr. Ramey Kemp advised that when the project began, a meeting was held with the N. C. Department of Transportation and New Hanover County. The City of Wilmington was also approached about traffic concerns for this area. From those meetings, a scope of work was developed for preparing a traffic study. The first step was to set up traffic counts at each location during peak hours, which are 4:00 p.m. until 6:30 p.m. for retail stores. The proposed use is projected to attract 7,500 new vehicles to the site, which is 15,000 trips per day. When studying the traffic pattern of the area, it was found there were three specific areas: (1) one-third of traffic going down Carolina Beach Road and back toward Wilmington; (2) one-third of traffic going north on College Road; and (3) one-third of traffic going toward Carolina Beach. When you divide 15,000 trips into thirds, 5,000 trips are being added per day in each of the three directions. The suggested 40% figure of new traffic being added to the system is not realistic. When peak hour traffic counts were reviewed, it is projected that new traffic will increase by 10% in the southern direction and 15% in the northern direction. Mr. Ramey noted that after studying traffic counts and the levels of service at each intersection, the following improvements were recommended: 1. Realign the existing service road running in between College and Carolina Beach roads to collector road status with an added sidewalk. A traffic signal will be placed at this site. 2. Add a north bound left turn lane into the site and a south bound right turn lane on College Road to extend through the first driveway entrance into the church property. 3. Add a south bound left turn lane on Carolina Beach Road turning into the connector road and modify the traffic signal to accommodate the turn lane. 4. Add a right turn lane at each driveway on the roadway. In concluding the presentation, Mr. Kemp said he would be glad to answer any questions. Attorney Taylor stressed the importance of the Commissioners recognizing that Mr. Kemp presented traffic figures based on the project being fully developed. This criteria was used to be fair in providing a traffic study that would apply to the worst scenario. Mr. Richard Collier, representing Zimmer Development Company, reported that Mr. Scott NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 945 McGee, the engineer representing Lowe's portion of the project, was present and would be glad to comment. Mr. Collier reported that two meetings have been held with surrounding property owners and a meeting has been held with officials of the adjacent church. Buffering requirements and other items that can be implemented into the project to better protect the neighbors have been considered. In order to handle storm water runoff, a retention pond system will be maintained by Lowe's with an existing canal on the north side of the property to avoid any impact to surrounding neighbors and the church. Storm water on properties located on the highway will be managed through curb and gutter, swales, and infiltration systems. The wetland site located on the property will be mitigated and permitted in the final engineering design. The two areas on the eastern boundary adjacent to the access road will be managed by constructing grass swales, sand filtered systems, and infiltration system. There is some concern whether the 36-foot wide access drive is warranted between the intersection at South College Road and Carolina Beach Road. Each end of the road is being widened; therefore, it would seem logical to widen the middle portion; however, this will only increase the amount of impervious surface. It would be better to widen the road when the southern portion of the project is constructed. There are two storm water retention ponds that will have to be adjusted to widen the road and there is concern for the Auto Spa and other properties in the area. Zimmer Development Company agrees with the conditions recommended by the Planning Board, but feels that consideration should be given to widening the middle portion when the southern part of the project is constructed. Vice-Chairman Greer expressed concern for large paved parking lots without all spaces being used. He asked if the developer would be willing to use pervious surface pavers on some of the back parking spaces on the Lowe's site near College Road in order to reduce the impervious surface. Mr. Collier said that pavers are better than asphalt, and Lowe's has been discussing the addition of pavers in particular areas to preserve more of the existing trees. Planning Director Hayes advised that according to recent studies, porous pavers are not as helpful as thought in reducing the impervious runoff; however, a porous material is better than asphalt. Chairman Caster commented on the Legion Stadium Committee studying the use of porous pavers and stated it was found that more maintenance was needed because of grass growing up between the pavers. Attorney Keith Calder, representing Mr. and Mrs. M. R. Oliver, owners of Tract 5, and Mr. Ruddie Malpass Williamson, owner of Tract 6, advised that his clients joined in the rezoning at the request of the Planning Board. After consideration of the request, these property owners would like for their property to be included in the B-2 Business zoning. Ms. Laura Padgett, a member ofthe Wilmington City Council, requested the Board of County Commissioners to consider an opportunity for the City of Wilmington, New Hanover County, N. C. Department of Transportation (NCDOT) and participating businesses to jointly study the possibility of constructing an elevated overpass at Monkey Junction to handle traffic from the proposed project. According to the NCDOT schedule, it will be more than ten years before this project can be funded. The City has authority under State Law to construct the overpass, and the City can build it cheaper and more quickly than the NCDOT. A majority of rights-of-way at this intersection are already owned by the NCDOT. Ms. Padgett requested the Board to consider postponing the proposed rezoning to allow time for development of an interlocal agreement to allow the developers to participate in the project. She apologized for the late notice, but stated it was an opportunity to resolve a traffic problem before the area is more impacted by the proposed project. Discussion followed on who would pay for the construction of the overpass. Ms. Padgett NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 946 advised she was requesting participation from businesses and commercial developments that will increase the traffic in this area. She also said that the City and County should explore funding sources such as increasing county-wide vehicle registration fees to fund the construction of new roadway facilities. Commissioner Birzenieks asked what the projected cost would be for construction of the overpass. Ms. Padgett responded that the projected cost ranges from $3 million to $4 million. She stressed the importance of everyone understanding that it will be ten years before the NCDOT will fund the project. With projected growth in this area, the traffic at Monkey Junction could be similar to that on College Road if this issue is not addressed. She requested the Board to postpone the rezoning request for 30 days to allow time for this concept to be studied. Commissioner Birzenieks stated it was unfortunate that the NCDOT does not place a high priority on roads in New Hanover County since this area is a vital part of the State's economy. Chairman Caster requested Attorney Taylor to comment on the request. Attorney Taylor advised the proposed project would not significantly impact the traffic in this area. Under the present zoning, 600 multi-family high density units can be constructed, which would generate more traffic. He also said the location of the site will interfere with the construction of an overpass at the Monkey Junction intersection. Chairman Caster responded that although the proposed project may not generate as much traffic as 600 multi-family units, the traffic in the area would be significantly increased. He said this was an opportunity for the developers to contribute to the solution. Attorney Taylor agreed with the theory of the proposed concept and stated that traffic problems at this intersection need to be addressed; therefore, the developers are willing to wait 30 days. He stressed the importance of everyone understanding that an excellent plan has been prepared for this site. The developers have made every effort to satisfy the concerns of surrounding neighborhoods and businesses, and the plan is acceptable to the community. Commissioners Davis spoke on being a proponent of responsible growth and stated the proposal presented by Ms. Padgett is an opportunity to resolve a traffic problem before it occurs. Vice-Chairman Greer agreed with the need to study the overpass concept, but stated everyone should be aware of the following road improvements that have been included in the plan submitted by the developers: (1) a 250-foot turn lane in one direction; (2) a 150-foot turn lane in another direction; (3) a 150-foot turn lane in another area; (4) a 200-foot turn lane in another area; (6) widen the road to 36 feet in width, which will require an additional retention pond; (7) move the intersection and widen to 6 lanes; and (8) place sidewalks along the roads. Chairman Greer asked if it is right to come up at the eleventh hour and hold up the project. The question to ask is how much is enough. Commissioner Birzenieks said that continuing the hearing for 30 days was a reasonable amount of time for Ms. Padgett to study the overpass concept. Commissioner Howell asked if there was any way to avoid having to hear the same information presented when the request is considered in 30 days. County Attorney Copley responded that information heard this evening would not have to be presented again on June 5, 2000, because the public record will reflect the findings and discussion held. Motion: Commissioner Birzenieks MOVED, SECONDED by Chairman Caster, to continue the Public Hearing until June 5, 2000. Upon vote, the MOTION CARRIED UNANIMOUSLY. BREAK NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 947 Chairman Caster called a break frm 9: 10 p.m. until 9:25 p.m. PUBLIC HEARING TO CONSIDER A REQUEST FROM LOREN DICKEY FOR A SPECIAL USE PERMIT TO CONSTRUCT A COMMUNITY BOATING FACILITY IN THE WINDY HILLS DEVELOPMENT LOCA TED NEAR THE 6000 BLOCK OF MYRTLE GROVE ROAD (S-457-04/00) Chairman Caster opened the Public Hearing and announced that the special use process requires a quasi-judicial hearing; therefore, any persons wishing to testify must step forward to be sworn in by the Clerk to the Board. The following persons were sworn in: Dexter Hayes Linda Killian Tracy Skrabal Steve Morrison Loren Dickey Planning Director Dexter Hayes reported that the Planning Board voted unanimously to approve the plan as submitted at the April 6, 2000, meeting. Some residents of Windy Hills Subdivision asked the developer questions about the project, but did not express opposition to the Special Use Permit. There was considerable discussion about the policies in the Land Use Plan concerning marinas, CAMA's definition of marinas, and the County's definition of marinas. Planning Director Hayes presented the following preliminary findings: 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 based upon the following findings: A. The subject property is served by private well and septic system. B. The site is located in the Myrtle Grove Volunteer Fire Department. C. Access to the facility will be conferred to the residents of the subdivision 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A. The subject property is zoned R-15 and the land classification is Conservation. Community boating facilities are permitted by special use permit in the R-15 zone. B. The Zoning Ordinance requires that the petitioner must demonstrate that the project will have minimal impacts on water quality, primary nursery areas, shellfish grounds and conservation resources. C. Off street parking must be provided on site at one space per boat slip or on nearby residential lots. D. The number of boat slips must not exceed the number of residential lots or dwelling units within the associated development. E. The right to use the facility must be conferred by an easement appurtenant to the residential project it is intended to serve. F. Commercial activities, including but not limited to the sale of gasoline, oil, marine supplies and foodstuffs, shall be strictly prohibited. 3. The Board must find that the use will not substantially injure the value of adjoining or NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 948 abutting property or that the use is a public necessity based upon the following findings: A. The surrounding land use is residential. The surrounding zoning is R-15 Residential. B. Other private residential piers are located in the vicinity. 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 of New Hanover County. A. New Hanover County land use policies encourage the consolidation of riparian access. This community boating facility will only serve the 9 lots that do not have water access, therefore encouraging the development of individual piers for the other 9 waterfront lots. B. County policies state that the development of marinas should be allowed as a means of providing public access provided they do not adversely affect estuarine resources or public trust waters, they shall not be allowed in primary nursery areas, SA or ORW waters, high ground facilities are acceptable. Planning Director Hayes reported that the recently adopted Comprehensive Land Use Plan under Policy 4.8 defines marinas as follows: "Marinas shall not be allowed in Primary Nursery Areas, Outstanding Resource Waters, or open Shellfishing Water." Planning Director Hayes also said that the definition of marinas in Land Use Policies include community boating facilities that serve 5 or more lots. Since the proposed 9-slip marina is to be located in a Primary Nursery area, it would not be consistent with the Land Use Policies. The County's regulations regarding marinas are more stringent than State's policies, which regulate marinas that contain more than 10 slips. To be consistent with the Comprehensive Land Use Plan, the community boating facility should not exceed 4 slips. Vice-Chairman Greer commented on the Comprehensive Land Use Plan and asked where the plan shows that community boating facilities are not permitted. Planning Director Hayes said on Page 90 in the back of the plan the definition of marina includes commercial marinas, community boating facilities, or mooring ramps that provide access to the water. Vice-Chairman Greer stated on Page 28 under 4.8 it reads as follows: "Allow the development of marinas, dry-stack storage, and moorings as a means of providing public access to the extent that their development shall not adversely effect estuarine resources or public trust waters." Vice-Chairman Greer said that a public access marina is not a community boating facility. Planning Director Hayes said the definition of public access is to include any facility that encourages the public use of publicly owned waters. In these types of waters, a community boating facility should not be allowed. The intent ofthe Steering Committee was to discourage any expansion of marinas in primary nursery areas. The State's definition of a marina is 11 or more slips; whereas, the County's definition of a marina community boating facility is 5 or more slips. Further discussion was held on the definition of 4 boat slips. Planning Director Hayes explained that 4 slips would be considered a residential pier, not a marina. Vice-Chairman Greer said this means that each lot on the waterfront can by right have four NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 949 boat slips. Planning Director Hayes responded that this was correct; however, State permits would have to be obtained. Vice-Chairman Greer asked whether a condition could be placed on the Special Use Permit to limit future addition of boat slips. Planning Director Hayes said if this was a new subdivision, the number of slips could be limited; however, since Windy Hills Subdivision was developed 25 to 30 years ago, the lots are owned by different people. If the request is approved, it would not obligate the property owners. Commissioner Howell asked which lots will be served by the community boating facility. Planning Director Hayes responded that the slips will serve the interior lots without water access. Commissioner Davis asked why the Planning Board approved a project that was inconsistent with the Land Use Plan. Planning Director Hayes responded that members of the Planning Board did not agree with the new direction of the Land Use Policies. Commissioner Birzenieks asked County Attorney Copley if the request complies to the Comprehensive Land Use Plan. County Attorney Copley responded that the Board will have to decide ifthe use complies with the Land Use Plan. The Comprehensive Land Use Plan is not an ordinance, but a policy that is not mandated by law. The Board will have to determine if the Land Use Plan should be followed as adopted or if the use is compatible for the specific area even though it does not comply to the Land Use Plan. Commissioner Birzenieks stated that when he voted on the Comprehensive Land Use Plan, he made a decision to follow the plan. Mr. Loren Dickey, the petitioner, requested Mr. Steve Morrison, a consultant, to address the issues of the Land Use Plan. Mr. Steve Morrison advised that a conflict exists between State allowed activities in resource waters versus the County's intent in the Comprehensive Land Use Plan. The resource waters must be protected; however, in this case, the neighborhood is caught in a difficult situation. When this property was first developed, there was an unimproved area with launching of boats for years. Technically, this was already a community boating facility. The County's definition ofa marina and State definition have been covered. CAMA defines a marina as any publicly or privately owned dock basin or boat storage facility constructed to accommodate more than 10 boats providing any of the following services: (1) permanent or transient docking spaces; (2) dry storage; (3) filling facilities; (4) haul out facilities; and (5) repair services. The Land Use Plan includes language which seeks to provide additional boat access facilities recognizing that properly sited facilities are essential to the preservation of both the environment and economy. Also, to allow the development of marinas, dry stack storage and moorings as a means of providing public access to the extent that this development does not adversely impact estuarine resources or public trust waters. A large part of southern New Hanover County is classified as ORW and primary nursery areas. Under these classifications, it is difficult for a community boating facility to exist. The only alternative is to dig into a hill to reach an upland base marina by dredging through a primary nursery area. This process impacts coastal wetlands. Under the plan proposed by Mr. Dickey, dredging can NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 950 be avoided. In concluding the presentation, Mr. Morrison requested the Board to consider the damage that can occur to the primary nursery area with digging into the upland basin. The proposed 9-slip boating facility will stop damage to wetlands in the common area, which is being used to launch boats. The proposed use will provide a safe regulated community access point to allow the uses of estuarine and public trust waters. The proposed 9-slip boating facility is allowable under CAMA regulations. Commissioner Howell asked what damage would be done to the primary nursery area if the 9-slip boating facility is allowed. Mr. Morrison responded that no damage would be done during construction because only pilings would be used without any dredging of the site. Mr. Dickey spoke on talking with waterfront property owners who indicated they would be interested in building a 9-slip boating facility in lieu of constructing private piers. Two of the waterfront lots are not conducive for construction and these lots will be integrated into the adjacent lot to minimize the impact on the shoreline. The structure will be a low impact boating facility that will be well maintained so homeowners can enjoy the water. Ms. Tracy E. Skrabal, Senior Staff Scientist of the Coastal Federation, spoke on the need to support the Comprehensive Land Use Plan. As a member of the Steering Committee, the time has come to commit to policies outlined in the Land Use Plan. She said that CAMA requirements, County requirements, and Comprehensive Land Use Policies were studied for over a period of three years. Public meetings were held and these Land Use Policies were agreed upon to clean up SA waters and protect the primary nursery areas. Estuaries support 95% of commercially valuable fisheries and 65% of recreationally valuable fisheries. Estuaries are valuable and must be protected. The comprehensive planning process was not consultant driven and two County Commissioners participated in the process. In closing, Ms. Skrabal stated the differences in definitions of marinas between the County and State are irrelevant to the discussion. The policy says that marinas shall not be allowed in primary nursery areas, outstanding nursery areas or open shellfishing waters. She requested the Board to deny the request because the proposed marina is inconsistent with the joint WilmingtonIN ew Hanover County Comprehensive Plan, adopted September 7, 1999 by the City Council and New Hanover County Board of Commissioners. Vice-Chairman Greer stressed the importance of everyone understanding that the proposed 9-slip community boating facility is not a commercial facility that can be used by the public. It is a boating facility in a private neighborhood that can be used only by the homeowners. These two definitions cannot be mixed. Ms. Skrabal disagreed and said she was a member of the Steering Committee. Vice-Chairman Greer responded that he was also a member of the Steering Committee. He said if you read further in the definition, it references private use, not public access. He read the following definition from Page 90 in the Land Use Plan: "Community Boating Facility: A private non-profit boating facility, including a dock, pier, andlor launching ramp on property which has water frontage, the use of which is intended to serve 5 or more residential lots or units. The right to use such facility must be conferred by an easement appurtenant to the residential lot it is intended to serve. No commercial activities of any kind shall be allowed within the confines of the facility." Vice-Chairman Greer stated that Mr. Dickey is requesting a private non-profit community boating facility. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 951 Ms. Skrabal and Vice-Chairman Greer held a lengthy discussion on the definition of marinas. Ms. Skrabal said that a commitment was made in New Hanover County to place a high value on primary nursery areas when adopting the CitylCounty Comprehensive Land Use Plan. Statistics show that public and private marinas are known to be sources of pollution in the form of fecal coliform bacteria and heavy metals. The Land Use Policies were not adopted to harm development of marinas in appropriate locations. Commissioner Howell asked if it is possible to have a marina that does not adversely impact prImary nursery areas. Ms. Skrabal advised that Land Use Policies in the Comprehensive Land Use Plan were adopted to limit marinas in primary nursery areas, outstanding resource waters and open shellfish areas. The intent was to make a commitment to preserve our quality waters and protect the primary nursery areas. The Board of County Commissioners will have to decide whether to follow the policies outlined in the Comprehensive Land Use Plan. Vice-Chairman Greer said the plan as written does not apply to a community boating facility. The Land Use Plan deals with public access marinas. Commissioner Howell expressed concern for the complexity of the Comprehensive Land Use Plan and stated there are numerous sections that encourage affordable housing but there are more policies that discourage affordable housing. He said that policies become a matter ofinterpretation. Ms. Skrabal advised that the Land Use Plan represents what the citizens within the community want the plan to reflect. She said this was a 3-year process with a great deal of input from the public. Ms. Linda Killian, representing the members of Citizens Protecting Resources, urged the Board of County Commissioners to vote against the proposed marina in the Windy Hills Subdivision. Many citizens have invested their time, talents, and interests to formulate the Comprehensive Land Use Plan to work for the benefit of the majority of citizens living in New Hanover County. The issuance ofa Special Use Permit for the proposed boating facility will undermine the integrity of the plan, and as seen in the past, this action will weaken the plan and establish a precedent that will encourage everyone circumvent the Land Use Plan. Ms. Killian urged the Board to enforce the Comprehensive Land Use Plan, which was previously adopted by this Board and endorsed by the County Commissioners running for re-election in their campaign platforms. Vice-Chairman Greer requested time to read the following sections of the Comprehensive Land Use: "Page 29 -Section 4.9: Allows uses of estuarine and public trust waters that provide benefits to the public and which satisfy riparian access needs of private property owners. In tidal waters, docks shall be limited to the minimum necessary to provide riparian access to waterfront property owners. Land Classification Map -Page 84 - Conservation: The purpose ofthe Conservation Class is to provide for effective long-term management and protection of significant limited or irreplaceable natural resources while also protecting the rights of the property owners. Management of these areas may be required for a number of reasons, including natural cultural, recreational, productive, or scenic values. Page 85: Conservation areas should be preserved in their natural state. Woodland, grassland and recreation areas not requiring filling are the most appropriate uses. Exceptions to this standard are limited to water-dependent uses (i.e., uses that cannot function elsewhere), shared industrial access corridors, and those exceptional development proposals which are sensitively designed so as to effectively preserve the natural functions of the site. The following guidelines clarify these conservation area objectives and development of property NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 952 should be limited to the following uses: (1) Water dependent uses may include utility easements, docks, moors, boat ramps, dredging, bridge and bridge approaches, revetments, bulkheads, culverts, groins, navigational aide, moorings, pilings, and navigational channels, simple access channels, and drainage ditches. In some instances, a water-dependent use may involve coverage of sizeable land areas with limited opportunities to integrate the use with the site's natural features. This would require reclassification of the site. By contrast, water dependent uses which can be designed to preserve a site's natural features may not require reclassification. This would be the preferred type of development." Vice-Chairman Greer concluded that the language just read references areas that are not public marinas. Chairman Caster asked Mr. Dickey ifhe agreed with the findings as presented by the Planning Director. Mr. Dickey agreed with the findings as presented. Chairman Caster closed the Public Hearing. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Davis, to deny the Special Use Permit based upon the proposed community boating facility not being in conformity with the policies set forth in the Wilmington-New Hanover County Comprehensive Land Use Plan which does not satisfy General Requirement #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. Commissioner Howell noted that when the five County Commissioners adopted the Land Use Plan, he did not feel the intent was to deny people a reasonable right to access the water. He stated these types of policies can be interpreted in different ways. Vice-Chairman Greer agreed with Commissioner Howell and stated if adjacent neighbors were present to object to the proposed use, he could understand denying the request. He noted that the policies in the Land Use Plan can be interpreted differently and stated in his opinion the private community boating facility is allowed for private use by the property owners. Upon vote, the MOTION TO DENY granting the Special Use Permit carried by a 3 to 2 vote as follows: Voting Aye: Commissioner Birzenieks Commissioner Davis Chairman Caster Voting Nay: Commissioner Howell Vice Chairman Greer A copy of the order denying the Special Use Permit is hereby incorporated as a part of the minutes and is contained in SUP Book III, Page 6. PUBLIC HEARING TO CONSIDER A REQUEST BYW A YNE CARSWELL FOR TOMMY DAVIS CONSTRUCTION TO REZONE 2.78 ACRES LOCATED IN THE 300 BLOCK OF GREENVILLE AVENUE ADJACENT TO WRIGHTSVILLE GREEN DEVELOPMENT FROM R-15 RESIDENTIAL TO R-I0 RESIDENTIAL (Z-699 04/00) Chairman Caster opened the Public Hearing. Planning Director Dexter Hayes reported that the Planning Board unanimously voted to approve the rezoning on April 6, 2000. He advised that the petitioner is requesting a rezoning from R-15 Residential to R-l 0 Residential. Based on the surrounding development patterns and the high density project adjacent to the site, Staff recommends approval. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 953 Chairman Caster asked if anyone from the public would like to comment. Mr. Paul Hill, a resident of 1908 Karen Court, expressed concern for water runoff into Wrightsville Green. He said that residents in this subdivision would like to know how the storm water runoff will be maintained because during heavy rainfalls the tributary of Bradley Creek overflows into their backyards. Mr. Wayne Carswell representing Tommy Davis Construction Company, advised that the company is aware of this sensitive area. Currently, under R-15 Residential zoning, 8 single-family homes can be constructed on the site. The impervious surface from 8 single family homes will be greater than the 9 units under higher density development. If at all possible, the land along Bradley Creek will not be disturbed and every consideration will be given to proper drainage for the site. There being no further comments, Chairman Caster closed the Public Hearing. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Howell to rezone 2.78 acres in the 300 block of Greenville Avenue to R-I0 Residential from R-15 Residential as recommended by the Planning Board. Upon vote, the MOTION CARRIED UNANIMOUSL Y. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF ZONING AREA NO. 9B OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED July 1, 1972, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Section 9-B, Page 89. PUBLIC HEARING TO CONSIDER A REQUEST BY DAVID BYRD TO REZONE 0.9 ACRES LOCATED IN THE 2400 BLOCK OF CASTLE HAYNE ROAD FROM R-20 RESIDENTIAL TO B-2 HIGHWAY BUSINESS (Z-700, 04/00) Chairman Caster opened the Public Hearing. Planning Director Dexter Hayes reported that the Planning Board voted unanimously to approve the request at the April 6, 2000, meeting. One neighbor was supportive of the petition and no one spoke in opposition to the request. Chairman Caster asked if anyone from the public was present to speak in opposition to the request. No one spoke in opposition. Chairman Caster closed the Public Hearing. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Birzenieks, to rezone 0.9 acres located in the 2400 block of Castle Hayne Road from R-20 Residential to B-2 Highway Business as recommended by the Planning Board. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF ZONING AREA NO. lOA OF NEW HANOVER COUNTY, NORTH CAROLINA, adopted July 1, 1974, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Section 10-A, Page 24. PUBLIC HEARING TO CONSIDER A REQUEST FROM UNC-WILMINGTON TO MODIFY A SPECIAL USE PERMIT FORA MARINE RESEARCH AND EDUCATIONAL FACILITY LOCATED IN THE 5000 BLOCK OF MASONBORO LOOP ROAD (S-329, 03/91 & 04/00) Chairman Caster opened the Public Hearing and announced that the special use process requires a quasi-judicial hearing; therefore, any persons wishing to testify must step forward to be sworn in by the Clerk to the Board. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 954 The following persons were sworn in: Dexter Hayes John Murray Steve W. Ross Harold White, Jr. Ron Trotta Roman Kolodij Planning Director Dexter Hayes reported that the Planning Board recommended approval of the petitioner's revised special use application and site plan design. The Planning Board also recommended that every effort be made to mitigate the noise pollution to adjoining residential properties and adhere to the County's Noise Regulations. Several residents who lived nearby voiced concern about the noise coming from the heatinglcooling system and suggested that the revised application not be approved until this issue had been resolved. The University of North Carolina at Wilmington received a Special Use Permit for a Marine Research and Educational Facility by the Board of County Commissioners in April, 1991. At that time, the site plan consisted of 18,125 cumulative square feet of construction. Specifically, a three winged building (7,500 square feet), an ocean support building (5,625 square feet), a shellfish sanitation building (2,500 square feet), and a meteorology building (2,500 square feet to be constructed. ) Construction on the project is almost complete. During construction, significant modifications were made prompting a revision to the original Special Use Permit issued. Modifications from the original plan include the following: Original Permit Revised Permit Total Square Feet Structures Parking BufferinglSetbacks 18,125 General Area Specified 0&1 Setbacks Applied 82,880 121 spaces shown on site Plan 50' Natural Buffer on Property lines Planning Director Hayes entered the following findings 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 based upon the following findings: A. Sewer service is provided by New Hanover County. Water service is provided by the City of Wilmington. B. The project has direct access from Masonboro Loop Road. Masonboro Loop Road is a NCDOT State maintained road. C. The project will be served by the Myrtle Grove VFD. D. Minimal site clearing has been completed. Of the 52 acres that exist on site, more than 40 acres will remain undisturbed. E. A 50 foot buffer of natural vegetation will exist along the property lines. F. The eastern portion of the site lies within the 100 year flood zone. The buildings are not located within this area. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 955 A. The Marine Research and Educational Facility will be operated by the University of North Carolina at Wilmington's Center for Marine Science. Colleges, Universities and related uses are permitted by special use in the R-15 Residential Zoning District. B. Approximately 82,880 cumulative square feet of building floor area has been constructed. The project consists of a three winged main building of one and two stories in height containing a research area (74,200 square feet of habitable space and 7,000 square feet for mechanical penthouse), a proposed University Police Gatehouse (480 square feet), and an Estuarine Research Station (1,200 square feet). C. Parking will be provided in accordance with Section 81 of the County's Zoning Regulations. D. All setbacks and bufferyard requirements will be in accordance with Section 69.11 of the County's Zoning Regulations for 0&1 uses. E. A pier and dock facility are already located on the site in accordance with County regulations. 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 based upon the following findings: A. Land adjacent and north of the facility is vacant. The property is now or formerly owned by the North Carolina Lutheran Retirement Center. Land adjacent and south of the site contains a few residential homes at low density. B. Significant development is located west of the project area. 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 of New Hanover County. A As stated, the project will consist of 82,880 square feet. B. Areas adjacent to the Intracoastal Waterway will be left undisturbed. C. The 1999 New Hanover Land Classification Plan identifies this area as Resource Protection. This classification provides 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 as long as important resources are not adversely impacted. Other Staff comments are that all other previous conditions from the 1991 Special Use Permit approval will remain, and on-site signage will be limited to one ground sign not to exceed six feet in height and 32 square feet in area. Commissioner Birzenieks commented on the facility being constructed and said the Board of County Commissioners cannot refuse to modify the Special Use Permit when the building has already been constructed. He asked why the Board had to go through this process. Planning Director Hayes responded that UNCW was operating under a permit that does not reflect the plan on the site. The use must be in compliance with the rules and regulations of New Hanover County. Commissioner Birzenieks expressed concern for the State permitting the facility and stated it was another example of how the County has to comply to State regulations. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 956 Chairman Caster asked if the petitioner would like to speak. Mr. Harold White, University Counsel, reported it was unfortunate that this situation occurred, and he advised that Chancellor Letuze has taken appropriate action to be sure this type of situation does not occur in the future. He explained that when the University works with the State, no actual plan is developed until notification has been received that State funding will be received for the project. When the Commissioners were requested to approve a Special Use Permit for the Marine Science Center, a concept, not a plan, was presented to the Board. The concept reflected four buildings at 18,125 square feet. When the plan was approved, the State approved a premier facility for the State of North Carolina, which is one of the top three facilities on the east coast and is comprised of 82,880 square feet. The additional square footage was added by building up instead of out, and the impervious square foot coverage and amount of developed and undeveloped land remained the same. All required buffering, setbacks, and conditions of the permit have been met. Because of the increase in square footage, a larger HV AC system was required. During the construction process, the building was not properly sealed which created an unacceptable amount of noise for the neighbors. When correcting this problem, it was found that Unit #2 was not within specifications. The modifications have been made and the structure is now in compliance to the New Hanover County Noise Ordinance. The University has also contracted with a nationally recognized firm to design and install a noise-suppression system, which will further reduce the noise level another seven to nine octave ranges. The design and installation of the system should be completed by August 1, 2000. In concluding his remarks, Mr. White stated that the University is sensitive to the pristine nature of this area and the fact that a neighbor who used to sit in the backyard listening to Whippoorwills now hears an HV AC system. The University will continue to work toward bringing this matter to a satisfactory closure. Chairman Caster asked if the noise levels were violating the Noise Ordinance. Colonel John Murray, representing the New Hanover County Sheriff's Department, reported that two visits were made to the site in February and April 2000. When approaching the back of the building, the noise was loud, but no noise level registered on the decibel meter. When visiting the site in April, one unit was in operation and the noise level did not register; however, there is another unit at the lower end of the building that has a loud whining turbine sound that could be disturbing to adjacent property owners. Commissioner Davis asked Mr. White ifhe would have a problem with modifying the Special Use Permit contingent upon installation of the baffling system. Mr. White stated that the University would not have a problem with this condition. Mr. Ron Trotta, representing residents on Captain's Lane, advised that the neighborhood was not opposed to the Marine Research and Educational Facility, but stated as a safety engineer he could testify that the noise problem is not resolved. When the HV AC system is in operation, the adjacent property owners are severely impacted with noise. It sounds as if there is an airport next door. Unfortunately, UNCW did not provide an opportunity to express their concerns about the noise. When the University was first contacted, staff was very nice but as the residents tried to contact the upper level of staff, they were treated with arrogance and turned away. The residents are upset and feel that due consideration should be given to enforcement of the New Hanover County Zoning Ordinance to avoid any future use that would not be acceptable to the neighborhood, such as the construction of dormitories. The citizens want their concerns heard and addressed. Mr. Steve H. Ross, a resident of 5301 Holt Road, commented on being professionally involved with the Marine Science and Education Facility and stated he was familiar with the history of the project. He advised that as representatives of the public, the County Commissioners should be concerned about the impact of this facility on adjacent property owners and stated this does not appear to be the case. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 957 Vice-Chairman Greer explained to Mr. Ross that the State has the right to pre-empt county regulations. The State made the decision to increase the size of the building without contacting the County. It is not fair to accuse the Commissioners of not being concerned about the noise and inconvenience to adjacent property owners when they were not involved in the process. When the University requested a Special Use Permit on April 1, 1991, the permit was granted with conditions based upon the plan presented. No one knew at that time the building would be expanded. Mr. Ross reported that excessive noise from the Marine Science and Education Center was first recognized in early August 1999. When the noise level did not decrease, a letter was forwarded to the University on September 20, 1999, with a description of the problem. No response was received from the University. Contacts were made to the Planning Department, Zoning Enforcement Department, Sheriff's Department, and these offices transferred his calls among the departments. This was frustrating and it was difficult to determine who was responsible for the problem. When no response was received from the University, the residents ofthe area signed a petition and forwarded it to Chancellor Leutze with a copy to the New Hanover County Board of Commissioners. Various phone calls were made and nothing was done. The first response from the University was received in February 2000, followed by two briefletters from the University indicating that something would be done to reduce the noise. The University did contract with a noise consultant to investigate noise levels around the facility. Colonel John Murray from the Sheriff's Department visited the site, and he very professionally showed a level of interest in the noise problem; however, there is a difference in the information presented by the consultant and Colonel Murray's analysis. The report from the consultant found that the only noise level exceeding the County Ordinance by a small amount was Location 5, next to the Ross property. The report also said that noise from the cooling tower was different from other units. The fan blades create noise in lower frequencies that seem to separate themselves from other ambient noises. The constant buzzing noise of lower frequencies can be easily noticed and it does not have to be significantly loud to be objectionable. The residents feel there are solutions to the noise problem; however, another major concern is the fact that the Marine Science and Education Building did fall under the New Hanover County Zoning Ordinance. Under 67.4, Item 5, it states that machinery should be shielded from view of the adjacent property line of residential use by a 100% opaque wall. This requirement has not been met, and the University is in violation of the New Hanover County Zoning Ordinance, the New Hanover County Noise Ordinance and the Special Use Permit. The breach offaith has been on the part of the University, and there are plans to construct a dormitory facility, boat maintenance facility, and possibly other expansions, which is of great concern to the residents. This facility was permitted in an R -15 Residential neighborhood on a wooded piece of land, which was not a good location for a marine lab. In the special use process, it states numerous times that the property must be developed in accordance with the plans submitted. In this case, the plan submitted was not followed and additional materials concerning the parking and landscaping plan were not forwarded to the County. The Special Use Permit was violated by 63,000 square feet which increased the height of the building and resulted in a much larger cooling unit. The permit has been blatantly violated and the University would not have tried to address the noise problem if these violations had not been discovered. Mr. Ross requested the Board to reconsider the entire Special Use Permit or place restrictions on the existing permit to reduce noise levels generated by the air conditioning systems, exhaust fans, and water pumps on the dock to an acceptable noise level. Unfortunately, the County Noise Ordinance is written as a blanket decibel level reading, and the differences in noise level frequencies do not fall within the guidelines. Mr. Ross stated that revisions to the Noise Ordinance may need to be considered by the Board. In concluding his presentation, Mr. Ross said the noise problem can be reduced. The design ofthe building was poor because the high back machinery should have been placed on the ground and shielded instead of being placed 40 feet in the air. The noise problem may never be resolved, but it can be better managed. Other conditions are as follows: NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 958 1. Lights: The lighting around the facility should be kept to a minimum and none of the lighting should be allowed to shine or reflect onto adjacent property or into adjacent houses. 2. Traffic: This facility has significantly increased commuter and visitor traffic into the area. The University should be required to control the traffic in the area. 3. Future Expansions: Require the University to submit in advance all future expansions or modifications to this facility for approval and public scrutiny. The County should be particularly concerned with construction of dormitories on the site. Mr. Ross expressed appreciation to the Board for allowing the residents to speak in public about these problems, and stated that personally his quality of life and property value have been negatively impacted by the expanded facility. If the original plan had been followed, this situation would not have occurred. He requested the Board to consider the conditions requested. Chairman Caster asked if these issues were discussed at the Planning Board meeting. Mr. Ross responded that the issues were not presented at the Planning Board meeting because he was out-of-town. Commissioner Davis requested the Planning Director to comment on the possibility of other buildings being constructed on the site. Planning Director Hayes explained that any future expansion or enlargement of the existing facility will require the University to request re-approval of the revised site plan by the Board of County Commissioners. Commissioner Davis suggested deferring action on this item to allow time for the University and concerned residents to meet and see if these issues can be resolved. Mr. Ross commented on understanding the lack of control over the State's decision to expand the facility, but stated when contacting the University officials, the residents were told there were lawyers who would deal with the problem. This is not the type of response that should be received from a supposedly good neighbor. It is important for the Commissioners to recognize that the project has not followed due process. When the University changed the plan, the residents did not have an opportunity to be represented. Commissioner Davis asked Mr. Ross ifhe and the residents would like to have an opportunity to discuss their concerns with the University. Mr. Ross responded that he would be glad to meet with the University. Mr. White stated that many statements made by Mr. Ross were true; however, quite frequently feelings are strong during a dispute. He objected to the statement that no response was received to the petition from Chancellor Leutze. Once the petition was received in the early part of November, within less than a month, discussions began with the neighbors. A written response was not sent until February 2000 because the following items had to be determined: (1) the problem had to be identified; and (2) it had to be determined if a violation of the New Hanover County Noise Ordinance had occurred, and if so, how was the best way to address the problem. It is imperative for everyone to understand that a mistake was made and Chancellor Leutze will do everything possible to address the problem. Commissioner Birzenieks requested the County Attorney to explain the legal rights of the County in dealing with the State of North Carolina in a situation of this type. County Attorney Copley responded that the Special Use Permit is issued by the Board of County Commissioners subject to the conditions recommended. The University is required to comply NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 959 to the conditions of the Special Use Permit. The Board of County Commissioners can require the University to abide by the conditions of the Special Use Permit and requirements of the New Hanover County Zoning Ordinance; however, New Hanover County does not have jurisdiction over building permits. The University did not have to submit an application to the Inspections Department to secure a building permit. County Attorney Copley recommended requesting the parties to meet and come back with specific recommendations agreed upon by both parties, such as the University will agree to install the baffling system to decrease the noise level within a specified number of days. The recommendations should include a time frame for completion of the agreed upon recommendations so the residents can be assured the problems will be addressed. Motion: Commissioner Davis MOVED, SECONDED by Vice-Chairman Greer to postpone the Public Hearing to allow the residents of the neighborhood to meet with University officials to see if the noise problem and other concerns can be resolved with recommendations being brought back to the Board of County Commissioners for consideration and approval. Upon vote, the MOTION CARRIED UNANIMOUSLY. Vice-Chairman Greer stated that he felt Chancellor Leutze would work with the community and make every effort possible to resolve the issues of concern. PUBLIC HEARING TO CONSIDER A REQUEST FROM SEA-COMM, INC. FOR A SPECIAL USE PERMIT TO CONSTRUCT A RADIO TOWER IN THE 1900 BLOCK OF PLANTATION ROAD, GREENVIEW RANCHES DEVELOPMENT (S-458, 04/00) Chairman Caster opened the Public Hearing and announced that the special use process requires a quasi-judicial hearing; therefore, any persons wishing to testify must step forward to be sworn in by the Clerk to the Board. The following persons were sworn in: Dexter Hayes Paul Knight Planning Director Dexter Hayes reported that the Planning Board voted 4-0 to approve the petitioner's application as submitted. One nearby resident of Greenview Ranches expressed opposition to the request because of concern about access from Market Street to the tower site, which is an unimproved road that runs through the resident's property. Several letters and phone calls were received by staff from nearby property owners voicing concern about the tower. The petitioner agreed to limit the night lighting to soft red versus a strobe light. Planning Director Hayes entered the following findings 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 based upon the following findings: A. No restroom facilities will exist on the site as proposed. The area is served by individual wells and septic systems. B. The proposed site has direct access from Plantation Road. Plantation Road contains a 60 foot right-of-way and is unimproved. The road is not on the NCDOT' s Highway Maintenance System. C. The Greenview Ranches area is served by the Ogden VFD. D. According to the County's Zoning District Map, this property is not located within the 100 year flood zone. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 960 E. The area where the tower is proposed is not heavily wooded. The closest residential home is 1,000 feet away. F. Guide wires supporting the tower will be fenced. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A. The property where the tower is located is zoned R-15 Residential. Transmission towers are permitted by Special Use Permit only. B. No County conservation or historical resources are located on site. C. The Wilmington Bypass, also known as the Northern Outer Loop, does not encroach into the proposed site. D. The proposed use will be in accordance with Section 69.17 of the County's Zoning Regulations, Telecommunications Facilities, Cellular and Related Towers. E. The transmission tower is proposed to be 350 feet. 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 based upon the following findings: A. Similar type cellular facilities exist in residential neighborhoods throughout New Hanover County. B. No evidence has been presented that this tower will decrease property values or pose a health hazard to residents that may live nearby. 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 ofN ew Hanover County based upon the following findings: A. The New Hanover County Land Classification Plan identifies this area as Rural. This land class provides for areas of low intensity use such as agriculture, forest management and other agrarian type uses. Commercial and industrial type uses may be allowed provided that natural resources are not adversely affected. B. As stated, tower facilities in residential zoning districts exist throughout New Hanover County. Planning Director Hayes informed the Board that approval of the Special Use Permit will replace the permit issued by the County to Ms. Martha Lee (S-429) in May, 1998 for a near by facility 500 feet in height. Commissioner Davis asked Planning Director Hayes if the use was consistent with the Land Use Plan. Planning Director Hayes responded that all requirements of the Land Use Plan have been met, and the County promotes construction of a tower in an area where co-location can occur. Chairman Caster asked if the petitioner would like to speak. Mr. Paul Knight, representing Sea-Comm, Inc. reported that the tower was needed to accommodate the Wrightsville Beach radio broadcast facility that was granted 13 years ago. This is the last radio station that will be granted in the area. When the Special Use Permit was granted to NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 961 Martha Lee in May, 1998, the NCDOT made it impossible to construct the tower because it would cost approximately $150,000 to build elevated roads to access Market Street. Access to the site will be through Plantation Road to Market Street. The tower will be 350 feet in height and will be capable of co-locating two cellular operations and eight communication antennas. It is felt that renters will want to co-locate on the tower. In closing, Mr. Knight reported on speaking with Mr. Parker about his concern regarding the electro-magnetic radiation from a high powered broadcast station. Mr. Parker was satisfied when he was informed that the station would not be a hazard because when calculations were performed on a 6,000 watt broadcast station, the hazard zone would be 48 feet on the ground. Since the antenna will be located 350 feet in the air, there will be no hazard zone. Chairman Caster asked Mr. Knight if he agreed with the findings of fact. Mr. Knight concurred with the finding as presented. Since no other person was sworn in to give testimony, Chairman Caster closed the Public Hearing. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Howell, to grant the Special Use Permit to Sea-Comm, Inc., for Parks Downing to construct a transmission tower on property located at 1900 Plantation Road based upon the evidence presented and findings of fact concluding 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; the use meets all required conditions and specifications of the Zoning Ordinance; the use will not substantially injure the value of adjoining property or abutting property, or that the use is a public necessity; and 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. Approval of this Special Use Permit will replace the permit issued by the County to Ms. Martha Lee in May 1998 for a nearby facility 500 feet in height. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the Special Use Permit is hereby incorporated as a part of the minutes and is contained in SUP Book III, Page 6. MEETING CONVENED FROM REGULAR SESSION TO HOLD A REGULAR MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Chairman Caster convened from Regular Session at 11:25 p.m. to hold a meeting of the New Hanover County Water and Sewer District. Chairman Caster reconvened to Regular Session at 11:29 p.m. ADDITIONAL ITEMS - COUNTY COMMISSIONERS Reminder of Scheduled Meetings Chairman Caster reminded the Board of the following scheduled meetings: Joint Meeting with the Wilmington City Council May 10, 2000 City Council Chambers, City Hall 102 North Third Street, Wilmington, N. C. 5:30 p.m. - Light Refreshments 6:00 p.m. - Meeting to continue discussion on consolidation Board of Equalization & Review Meetings June 20, 2000 - 9:00 a.m. - 12:00 noon June 21,2000 - 9:00 a.m. - 12:00 noon Assembly Room, New Hanover County Courthouse 24 North Third Street, Wilmington, N. C. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 962 Discussion of Soccer Fields at the North Campus of Cape Fear Community College Commissioner Davis requested an update on the development of soccer fields at the North Campus of Cape Fear Community College. County Manager O'Neal informed the Board that this project was still under design. He advised that a status report on the project would be forwarded to the Commissioners before the end of the week. Adoption of Resolution Certifying Election Results for Special Election Held on May 2, 2000, for the Open Space and Parks Bond Referendum Chairman Caster introduced and read the resolution certifying election results for the Special Election held in New Hanover County on May 2, 2000, for the Open Space and Parks Bond Referendum. Chairman Caster called for a vote to adopt the resolution as read. Motion: Commissioner Howell MOVED, SECONDED by Commissioner Birzenieks, to approve the resolution certifying the election results as read and presented. 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 XXVI, Page 8. Authorization for the Airport Authority to Proceed with Purchasing the Clark-Teachey Property County Attorney Copley requested the Board to authorize the Airport Authority to proceed with negotiations to purchase the Clark-Teachey property. Three appraisers will be hired to see if a purchase price can be negotiated. The Airport Authority has agreed that the price will be no lower than the lowest price of the appraisers and no higher than the highest price of the appraisers. If no agreement can be reached, the Airport Authority will request the Board to proceed with a condemnation. Funding has been budgeted for purchase of the property. Motion: Commissioner Birzenieks MOVED, SECONDED by Vice-Chairman Greer, to authorize the Airport Authority to proceed with purchasing the Clark-Teachey property. Upon vote, the MOTION CARRIED UNANIMOUSLY. Change in Date of Joint Work Session with the Planning Board to Discuss Draft Drainage Regulations from May 17, 2000 until May 22, 2000 County Manager O'Neal reported that Mr. Dan Dawson has requested rescheduling the joint Work Session with the Planning Board on May 17, 2000, because he has jury duty and will not be able to attend the meeting. County Manager O'Neal suggested rescheduling the meeting to May 22,2000, at 1 :00 p.m. following the Regular Meeting of the Board. Consensus: It was the consensus of the Board to reschedule the Joint Work Session with the Planning Board for discussion of draft drainage regulations to May 22, 2000, at 1 :00 p.m. in the Assembly Room ofthe New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Coastal Resources Commission Nominations Discussion was held on the Governor's request for counties to submit nominees to serve on the Coastal Resources Commission. Chairman Caster requested County Manager O'Neal to place this item on the May 22,2000 NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 8, 2000 BOOK 27 PAGE 963 agenda. Appointment ofW. Albert Corbett, Jr. to Serve on the Airlie Gardens Foundation Board, Inc. County Manager O'Neal announced that a letter has been received from Mr. Scott Corbett informing the Board that due to additional responsibilities, he would not be able to continue to serve on the Airlie Gardens Foundation Board, Inc. He has requested the Board to consider appointment ofW. Albert Corbett, Jr. to serve as the representative for the Corbett family. Chairman Caster called for a motion. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Birzenieks, to appoint W. Albert Corbett, Jr., to serve on the Airlie Gardens Foundation Board, Inc. as the representative ofthe Corbett Family. Upon vote, the MOTION CARRIED UNANIMOUSLY. Announcement of Award Presented to the New Hanover County Planning Department County Manager O'Neal announced that the New Hanover County Planning Department has been selected as the recipient of the "2000 Large Community Comprehensive Planning Award" for the New Hanover County Tidal Creeks Program. ADJOURNMENT Chairman Caster called for a motion to adjourn. Motion: Commissioner Birzenieks MOVED, SECONDED by Vice-Chairman Greer to adjourn. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Caster adjourned the meeting at 11:45 p.m. Respectfully Submitted, Lucie F. Harrell Clerk to the Board