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HomeMy WebLinkAbout1993-12-21 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 858 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Tuesday, December 21, 1993, at 9:00 A.M. in the First Floor Assembly Room of the New Hanover County Administration Building, 320 Chestnut Street, Wilmington, North Carolina. Members present were: Commissioners Sandra Barone; WilliamA. Caster; William E. Sisson, Jr.; vice-Chairman E. L. Mathews, Jr.; Chairman Robert G. Greer; County Manager, Allen 0' Neal; County Attorney, Wanda M. Copley; and Clerk to the Board, Lucie F. Harrell. Chairman Greer called the meeting to order and wished everyone a Merry Christmas. INVOCATION AND PLEDGE OF ALLEGIANCE Finance Director, Andrew J. Atkinson, gave the invocation. Commissioner Barone led the audience ln the Pledge of Allegiance to the Flag. A VISIT FROM SANTA CLAUS Santa Claus paid an unexpected visit to the meeting. Each County Commissioner was presented a small gift with brief remarks about the past year. The visit was enjoyed by all, and Santa Claus, Commissioner Caster, was thanked for this surprise. NON-AGENDA ITEMS Chairman Greer inquired as to whether anyone from the general public would like to present an item not listed on the Regular Agenda or comment on an item listed on the Consent Agenda. Ms. Lillian B. Tompa, a New Hanover County School employee, reported on the immediate need to provide space and equipment for the school children in New Hanover County. She presented a plan that will meet the educational needs and requested the Commissioners to compare this plan with the proposed plan by the Board of Education. Concern was expressed for waiting until March 8, 1994, to hold the bond referendum, and the Commissioners were requested to consider the following process: (1) Forego the political process and obtain permission from the people to authorize the writing of bonds; (2) After 90 days, bonds would be made available for purchase on the American Stock Exchange over the counter; and (3) encourage investors to buy the bonds. This would use the County's money more wisely and allow the process to move more quickly. Additional copies of documents were handled out to the Commissioners. APPROVAL OF CONSENT AGENDA County Manager O'Neal requested removal of Items 8 and 15 from the Consent Agenda in order to allow for discussion and a separate vote on each issue. Motion: Commissioner Sisson MOVED, SECONDED by Commissioner Barone to approve the Consent Agenda with removal of items 8 and 15 as requested by the County Manager. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes The Commissioners approved the minutes of the Regular Meetings of November 1, 1993, December 6, 1993, and the minutes of the Budget Work Session held on December 2, 1993, as presented by the Clerk to the Board. Adoption of Resolution Requesting Addition of Roads in Bayshore Estates to the State Highway System The Commissioners approved a resolution requesting the addition of roads in Bayshore Estates, Section 14, to the State Highway System. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 859 A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXI, Page 29. Renewal of Contract #94-0175 Between the New Hanover County Alcoholic Beverage Control Board and Sheriff of New Hanover County for ABC Law Enforcement The Commissioners approved and renewed the the New Hanover County Alcoholic Beverage Control of New Hanover County for ABC Law Enforcement. authorized to execute the contract documents. contract between Board and Sheriff The Chairman was A copy of the contract is on file in the Legal Department. Authorization for the New Hanover County Library to File a LSCA Literacy Grant for Developing an Adult and Pre-School Children Literacy Program in the Jervay Housing Project The Commissioners authorized the Library to file a LSCA Literacy grant in the amount of $31,215 to be used to develop a literacy program for adults and pre-school children residing in the Jervay Housing Project. The Library will contract with Crossroads of North Carolina, Inc., a local non-profit organization, to manage the program at Jervay. The Cape Fear Literacy Council will also be a partner in this effort. The proj ect will be totally funded through the Literacy grant with no County funds required. The Library was authorized to receive the funds if the grant lS approved. Approval of Budget Amendment #94-019 - Phase I of the Castle HaYne Park The Commissioners approved the following Budget Amendment: 94-019 Parks Facility Bonds Debit Credit Parks Facility Bonds LWCF Grant (Castle Hayne Park) $45,500 Parks Facility Other Improvements $45,500 Purpose: A Land and Water Conservation Fund grant in the amount of $45,500 was awarded and accepted by the Board of County Commissioners on November 15, 1993. These funds will be used for construction of Phase I of the Castle Hayne Park. Approval of Budget Amendment #94-0089 - Health Department The Commissioners approved the following Budget Amendment: 94-0089 Health Department/Child Services Coordination Debit Credit Health Dept./Child Services Coordination Title XIX Fees $9,050 Capital Outlay - Equipment $9,050 Purpose: To budget greater than anticipated revenue for work stations, which will more effectively utilize space at the Health Department. Approval of Budget Amendment #94-0102 - Department of Aging Debit Credit Department of Aqinq/Senior Center Operating Transfer $3,000 Newsletter $3,000 Purpose: To transfer from escrow funds donated to offset the increasing costs to produce the Senior Center's monthly newsletter. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 860 Approval of Budget Amendment #94-0104 - Human Services The Commissioners approved the following Budget Amendment: #94-0104 Human Services/Flow Through Grants Debit Credit Human Services/Flow Throuqh Grants Domestic Violence Grant $2,989 Victims Assistance $2,989 Purpose: To rollover unexpended grant funds from FY 1992-93 to FY 1993-94 for the Victims Assistance Domestic Violence Grant. No additional County funds are required. Approval of Bonus for Parks Supervisor, H. WaYne Mohr, as Authorized in Section 5 (b) of the New Hanover County Personnel Policy The Commissioners approved a bonus in the amount of $3,500 as authorized under Section 5(b), Special Increases, in the Personnel Policy for H. Wayne Mohr who served as the interim Parks Director from September 29, 1992, through September 7, 1993. His performance was exemplary and no compensation has been given for assuming the duties of a Parks Director. Release of Value - Tax Department The Commissioners granted Mr. Henry Richardson the Senior Citizen/Disability Exclusion as he submitted a late application. This action was recommended by the Tax Administrator, and a letter explaining the late filing is on file in the Tax Department. Approval of Tax Collection Reports Through November 30, 1993 The Commissioners approved the following Tax Collection Reports through November 30, 1993, as submitted by the Collector of Revenue: New Hanover County Tax Collections New Hanover County Fire District Tax Collections Copies of the Tax Collection Reports are hereby incorporated as a part of the minutes and are contained in Exhibit XXI, Page 29. Approval for Reclassification of Part-Time Clerical Assistant position to a Full-Time Administrative Assistant II position and Reclassification of Administrative Assistant I position to an Administrative Secretary position - County Manager's Office The Commissioners approved the reclassification of a part-time Clerical Assistant position to a full-time Administrative Assistant II position and reclassified the Administrative Assistant I position to an Administrative Secretary position as requested by the County Manager. Due to the workload in the office, two full time positions are needed. Approval of Budget Amendment #94-0103 - Fire Service District County Manager O'Neal reported when discussing this item at the Staff Meeting on Thursday, Commissioner Sisson requested preparation of a Budget Amendment to purchase all the additional pagers needed by the Volunteer Fire Departments to cover the growth in membership since the original purchase. A Budget Amendment was presented for purchase of 31 additional pagers with designation of the Winter Park Volunteer Fire Department as the agency responsible for purchasing the pagers. Motion: Vice-Chairman Mathews MOVED, SECONDED by Commissioner Sisson to approve the purchase of 31 pagers and the associated Budget Amendment as follows: 94-0103 Fire District/Fire Departments Debit Credit Fire District/Fire Departments Appropriated Fund Balance $18,135 NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 861 (Budget Amendment Continued) Debit Credit Winter Park Volunteer Fire Department $18,135 Upon vote, the MOTION CARRIED UNANIMOUSLY. Award of Bid to Republic Industries, Inc. for Rehabilitation of Four Dwellings under the New Hanover County Housing Rehabilitation Incentive Program Staff Planner, Wanda Coston, reported a grant from the N. C. Housing Trust Fund in the amount of $90,000 was awarded to the County in April, 1993 with a County match of $58,728. Monies set aside in 1988 to perform a community development project near the Airport are being used for the County match because this project was not performed and the State has requested that these funds be spent since it has been five years. Bids were advertised in October for rehabilitation of six (6) houses. The lowest responsible bid was submitted by Republic Industries, Inc. for rehabilitation of the six dwellings. Due to two (2) of the six (6) houses exceeding the rehabilitation limit, Staff had to remove these projects. The contractor has been informed of this change and has agreed to execute a contract for the rehabilitation of four (4) houses. The Commissioners were requested to award the contract to Republic Industries, Inc. for the rehabilitation of four (4) houses. Motion: After a lengthy discussion of the program and use of County funds, Commissioner Barone MOVED, SECONDED by Commissioner Sisson to award the bid to Republic Industries, Inc. for the rehabilitation of four (4) houses. Upon vote, the MOTION CARRIED UNANIMOUSLY. Copies of the contracts are on file in the Legal Department. PRESENTATION OF NEW HANOVER COUNTY EMPLOYEE SERVICE AWARDS County Manager O'Neal presented service awards to the following County employees in recognition of their years of dedicated service to New Hanover County: Employee Years of Service Ester Adams, Health Department 5 John Bates, Inspections Department 5 Deloris G. Bennerman, Social Services 5 Roger Blake, Environmental Management 5 patricia Bowman, Social Services 5 Mary J. Brantley, Social Services 5 Leslie C. Buis, Social Services 5 Sally A. Cobia, Health Department 5 Anne W. Colvard, Social Services 5 Stanley Crowder, Sheriff's Department 5 Christopher Elrod, Inspections Department 5 Alexander J. Hawkins, Environmental Management 5 Jacqueline C. Holt, Social Services 5 Cynthia L. Lucas, Vehicle Management 5 Dornell S. Register, Social Services 5 Waymond Robinson, Sheriff's Department 5 Bruce T. Shell, Budget 5 Robert C. Sutton, Jr., Inspections Dept. 5 Lisa K. Troth, Social Services 5 Susan S. Weaver, Health Department 5 William K. Willetts, EMS 5 Molly M. Woodcock, Social Services 5 Schuyler Conklin, Inspections Department 10 Douglas A. Garrett, Inspections Department 10 Ernest Gordon, Property Management 10 Lucie Harrell, Clerk to the Board 10 Bervick Landry, Inspections Department 10 NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 862 Carolyn Shepard, Social Services Betty L. Swart, Health Department David Weaver, Assistant County Manager 10 10 10 James A. Golden, Inspections Department 15 Barbara C. Fowler, Social Services 20 Chairman Greer, on behalf of the Board, expressed appreciation to the County employees for their dedicated service to New Hanover County. The following County employees were unable to attend and service awards will be presented by the Department of Human Resources: Anne M. Ball, Social Services 5 Linda S. Bostic, Social Services 5 Mack Blanton, Inspections Department 5 Linda S. Boswell, Social Services 5 Carolyn L. Cabaniss, Social Services 5 Mitzi W. Chappel, Health Department 5 Martha B. Crawford, Social Services 5 Marilyn E. Ellis, Sheriff's Department 5 Kevin Foss, Sheriff's Department 5 Allison H. Fritz, Social Services 5 Dorothy C. Gillies, Health Department 5 Bonnie B. Krieger, Social Services 5 Flora J. Lennon, Social Services 5 Ronnie C. Long, Parks 5 Gladys S. Mitchell, Health Department 5 Christiane Freer-Parsons, Museum 5 William Boaz, Sheriff's Department 10 Cameron McAbee, Budget 10 Robert Smith, Vehicle Management 10 Susan Wilson, Tax Department 10 RECOGNITION OF NEW COUNTY EMPLOYEES County Manager 0' Neal recognized the following new County employees: Jane Simcoe, Library Nathaniel Edge, Parks Department John Norton, Parks Department Marilyn Roberts, Health Department Angela Evans, Health Department Nona Schmook, Health Department Norma Troutman, Health Department Helen Black, Health Department Gloria Pourcho, Health Department Octavia McQueen, Social Services Kelly Roberts, Social Services Jeanie Wade, Social Services Chairman Greer, on behalf of the Board, welcomed the new County employees and wished them well in their new positions. REPORT ON AGRICULTURAL LENDING AND RURAL DEVELOPMENT IN NEW HANOVER COUNTY Mr. Elmer Langston, Farmers Home Administration Supervisor of Pender and New Hanover Counties, reported the Farmers Home Administration (FmHA) is having a major impact in New Hanover County, and the following year-end report was presented: -In 1993, $3,709,850 was spent on Rural Development ln New Hanover County. -In 1993, sixty-eight housing loans were granted. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 863 -No requests were received for Agricultural loans. -Funds were loaned to persons with incomes from $12,000 to $30,000 as follows: (1) $2,075,370 through direct lending; and (2) $1,526,980 through the guaranteed lending program. FMHA lS increasing its emphasis on the guaranteed loan programs. These programs will help borrowers to establish a relationship with commercial lenders and assist their transition to private credit. Guaranteed loans assist borrowers in becoming less reliant on the government at a substantially less cost to the taxpayers. Commissioner Sisson inquired as to whether FmHA can recelve referrals from New Hanover County? Mr. Langston reported no referrals were received last year, but the agency can accept referrals from New Hanover County. Chairman Greer, on behalf of the Board, expressed appreciation to Mr. Langston for an informative report. TAX APPEAL SUBMITTED BY PUGLIA MARINE DEVELOPMENT, INC. TO THE 1993 DISCOVERY OF THE VESSEL, THE "SAMANTHA LIN" Tax Administrator, Roland Register, reported on just seeing a letter where the Bladen County Board of Commissioners unanimously agreed that the SAMANTHA LIN should be taxed in Bladen County, and the vessel was listed at a value of $400,000 on December 2, 1993. This information was unknown when preparing the agenda information. He presented background information on the appeal and stated Puglia Marine Development, Inc., is appealing the 1993 discovery of the vessel, the SAMANTHA LIN, valued at an estimated worth of $13, 000, 000. In the two tax appeals being heard today, both vessels are luxury yachts in the name of a corporation for personal use. The vessels move from place to place along the Intracoastal Waterway and it is difficult to determine situs. The Supreme Court points to grave uncertainty of actual situs which would result in an entire escape from taxation. When the SAMANTHA LIN came to New Hanover County, services were expected from the fire departments and law enforcement to maintain a civilized environment in which to operate. For these services, New Hanover County is entitled to a return in taxes. At the current time, the vessel has been in New Hanover County for over one year; is owned by a North Carolina Corporation; and is for use by a North Carolina resident. The question to be answered is whether New Hanover County has jurisdiction over the taxes. After a review of this case by four attorneys, it is felt New Hanover County does have jurisdiction of the taxes; therefore, the discovery and penalty should be upheld. The Commissioners were requested to listen very closely to the evidence presented and determine the facts that are relevant to the appeal. Chairman Greer stated it is his understanding that if he lives in Columbus County and owns a boat located in New Hanover County the boat could be taxed by New Hanover County even though it had been listed and taxes were paid in Columbus County. Also, in order to receive a refund on the taxes paid in Columbus County, taxes would have to be paid in New Hanover County. He asked the Tax Administrator if this statement is correct? Tax Administrator Register reported the statement lS correct. Chairman Greer inquired as to what would happen if the same boat was docked six months at Lake Waccamaw and six months in Wilmington? Tax Administrator Register reported it would depend on the situs rules associated with a residence in New Hanover County on a regular basis. In this example, the boat can be carried on a NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 864 trailer; therefore, if a discovery was made and the boat was listed in another county, New Hanover County would give up the discovery. If the boat had not been listed in the other county, the tax would apply. Chairman Greer inquired as to what would happen to the value of the boat if he lived in Columbus County, purchased a hull of a boat for $1,000, paid taxes on this boat in Columbus County, but carried the boat to New Hanover County for installation of motors, radios, and other equipment? Tax Administrator Register reported the situs would be changed to New Hanover County from the place where the boat was partially manufactured, and the value would be determined upon the completion of the boat on January 1. Mr. George Fletcher, the Attorney representing Puglia Marine Development, Inc., stated the Board of County Commissioners must decide if the location of the SAMANTHA LIN in New Hanover County was permanent and if a tax situs was acquired. In his opinion, a tax situs was not acquired. He also expressed concern for the manner in which Mr. Register responded to the firm with statements referring to the defense as being shallow and unsubstantive, which tends to send the wrong message to people doing business in New Hanover County. He requested Mr. Guyton to present the facts concerning the exterior and interior upfit of the SAMANTHA LIN. Robert S. Guyton, Esq., Assistant Secretary of Puglia Marine Development, Inc., reported in the latter part of October 1992, the vessel, at that time referred to as Puglia Hull 490, arrived in Wilmington, North Carolina, at the Wilmington Iron Works dock. The vessel was navigable, but remained, for all purposes, a shell that was under construction. Discussions began with officials of Bladen County relative to the taxability of the Puglia Hull. The following factors were considered to be relevant to a determination of taxability: (1) progress of construction; (2) documentation of vessel; (3) length and purpose of stay in North Carolina; and (4) ownership of vessel and domicile of owner. On December 28, 1992, the vessel traveled to South Carolina for purposes of removing the temporary wall, ceiling, and floor panels installed for navigation from the west coast. Upon removal of the temporary panels, initial electrical system preparations were also made before the vessel returned to Wilmington, North Carolina, on January 5, 1993. After returning to Wilmington, the following construction began on the vessel: (1) exterior sanding and faring of the hull; (2) exterior painting; (3) installation of teak decking; (4) electrical systems; (5) lighting systems; (6) navigation and electronic installations; (7) interior walls, ceilings, and flooring; (8) carpet, wallpaper, painting; (9) plumbing and fixture installation; (10) cabinet manufacturing and installation; and (11) refrigeration and kitchen equipment installation. These operations continued until July 11, 1993, at which time the vessel departed Wilmington for sea trials and a maiden voyage to inspect the newly installed systems. On May 12, 1993, the Tax Administrator forwarded to Mr. Charles Puglia a "Notice of Assessment Pending" for the vessel. This Notice was ineffective, and remains so. After conversing with Mr. Len Woodall, he was told to contact Mr. Register to inform him of the impropriety of the notice, as well as Puglia's intention to list the vessel in Bladen County, if the vessel had to be listed at all. Mr. Register replied to Mr. Woodall, and in doing so informed him that all correspondence must be made by an officer of the Corporation. At that time, we responded to Mr. Register, citing the applicable statutes, as well as explaining our position relative to taxability in New Hanover County. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 865 No reply was received from Mr. Register, and it was assumed that the matter had been resolved. Approximately five months later, another letter was received from Mr. Register, in which he expounded on an issue of "bailment for hire", which he apparently believed had some applicability to the matter, and further explained that he had sought information from the Institute of Government. A response was sent to Mr. Register, explaining to him what a "bailment for hire" is; why it was not applicable in this case; and a simple example of such a relationship was given. In addition, the appropriate N. C. General Statutes were listed and several court cases that would possibly help Mr. Register to more accurately understand the matter at hand. On November 9, 1993, Mr. Register requested that Puglia prepare any information deemed appropriate for Puglia to appear before the Board of County Commissioners for a hearing on December 21, 1993. This information has been submitted as follows: -N. C. General Statute 105-304(c) reads as follows: "General Rule - Except as otherwise provided in subsections (d) through (h), tangible personal property shall be taxable at the residence of the owner. For purposes of this section:" Subparagraph (2) further states "The residence of a domestic or foreign taxpayer other than an individual person shall be the place at which its principal North Carolina place of business is located." THE SAMANTHA LIN is listed on the tax rolls in Bladen County. -The N. C. General Statutes go on to clarify the situs of a corporation by saying that generally, personalty of a corporation has situs at the principal office of the corporation. This principal is established in several cases which are cited in the copies of the N. C. General Statues I. Addi tionally, the case notes cite the case of the City of winston v. the City of Salem, 131 N.C. 404, 42 S.E. 889 (1902), as further clarifying situs by saying, "where a corporation had its place of business and principal office in one town, with a part of the personal property located in another town, such property was only taxable in the town where the place of business and principal office were located." vice-Chairman Mathews inquired as to when the SAMANTHA LIN arrived in New Hanover County and when was the vessel listed in Bladen County? Mr. Fletcher reported the vessel arrived in New Hanover County in October 1992 with a listing of the vessel in Bladen County on December 2, 1993. vice-Chairman Mathews inquired as to how the vessel could travel from Tacoma, Washington, to New Hanover County without being well equipped and inquired as to the percentage of completion of the boat when it arrived in Wilmington? Mr. Robert Guyton reported the vessel was seaworthy with the minimal marine equipment. The boat was brought to Wilmington for construction of the exterior and interior. Mr. Register asked if this is the only asset of Puglia Marine Development, Inc. in the State of Washington, and if personal property is taxed in this state? Mr. Robert Guyton reported Puglia Marine Development, Inc. does have other assets and personal property is taxed in the State of Washington, but the company does not own any other vessels. Mr. Register inquired as to whether Puglia Marine paid taxes in 1992 to the State of Washington, and if the boat was considered personal property and taxable? NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 866 Mr. Guyton reported taxes were paid on the equipment; however, the vessel was not taxed because it was raw steel. Mr. Register reported after checking with pierce County in the State of Washington, there is no listing for Puglia Marine Development, Inc. Chairman Greer asked if the boat was listed ln Bladen County for 1992 or 1993? Mr. Guyton reported the boat was listed for 1993 because the boat was in Tacoma, Washington, and was not seaworthy in 1992. vice-Chairman Mathews inquired as to the minutes of the meeting where the Bladen County Board of Commissioners voted unanimously to tax the vessel in Bladen County? Mr. Guyton reported the Commissioners were contacted individually, not in a meeting, and each member of the Board agreed to tax the vessel in Bladen County at a value of $400,000. Commissioner Sisson commented on taking the vessel to a boat show and inquired as to what the price would have been if someone had been interested in purchasing the vessel? Mr. Guyton reported the boat building company, not Puglia Marine Development, Inc., quoted a prlce of $ 6 million on a completed vessel. Commissioner Caster stated, ln his opinion, the vessel was brought from Tacoma, Washington, to be worked on in New Hanover County to be sold and was not an expansion of the company's business. He also feels the Tax Administrator performed Bladen County's work by discovering the taxable property and forced the issue of listing the boat in Bladen County. A lengthy discussion was held on tax laws pertaining to situs and various court cases. Assistant County Attorney, Andrew Olsen, reported this is a factual determination and since the business was not listed as of January 1 in another county, it must be understood that New Hanover County is not trying to double tax the company; however, the Commissioners must review the use by Puglia Marine of the facilities used in New Hanover County. Did Puglia Marine bring the vessel into Wilmington for remodeling and upgrading for eventual use or sale, or did they occupy a dockyard as a general contractor to go into business in New Hanover County? The decision rendered must be based on the evidence and facts presented. Motion: After further discussion, Commissioner Barone MOVED, SECONDED by Commissioner Caster to deny the discovery and penalty. The floor was opened for discussion. Commissioner Sisson reported this was a speculative type of business venture. If he leased a building to perform his business, he would pay taxes associated with the lease. In this case, the dock was leased which denotes the intent of setting up a business or having personal property in New Hanover County. While docked the company took full advantage of fire protection and other services provided by the County. In his opinion, the user, not the taxpayers of New Hanover County should pay for the County services provided while docked in Wilmington. Also, it appears from the action that occurred in Bladen County that Puglia Marine did not intend to pay taxes. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Barone Commissioner Caster Chairman Greer NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 867 Voting Nay: Commissioner Sisson Vice-Chairman Mathews BREAK Chairman Greer called a break from 10:47 A.M. until 11:10 A.M. TAX APPEAL SUBMITTED BY GOLDEN GREEK II HOLDINGS, INC. FOR 1993 DISCOVERY OF THE VESSEL, THE GOLDEN GREEK II Tax Administrator, Roland Register, reported Golden Greek II Holdings, Inc. is appealing the 1993 discovery of the vessel, Golden Greek II, worth an estimated $3.5 million. The vessel is in and out of New Hanover County, but a newspaper article in 1992 related to the "owner" as being a person with a North Carolina residence and not the Delaware corporation claimed by the owner. The law burdens the owner to prove it was not his duty to list, or that the property acquired situs elsewhere. The affluent "principal" can establish businesses and residency in many places, but the County intends to establish a tax situs of New Hanover County for this vessel. In this case, it is believed that this is an individual owning a luxury yacht calling it a business, but having personal availability whenever desired. The appellant has not established taxable situs elsewhere, and has not shown the tax was paid elsewhere; therefore, the law placing the burden on the owner to list has not been satisfied and the discovery should be upheld. Attorney Lonnie Williams, reported because of an article which appeared in the Star-News, Mr. Register has reported a discovery and a copy of the article is presented in the documentation for the tax appeal. Attorney Williams presented copies of affidavits and reported the Golden Greek II Holdings, Inc. (GGH) , is a Delaware corporation which is a wholly owned subsidiary of Federated Home and Mortgage Company, Inc., a Pennsylvania Corporation with its principal office at 810 Cricklewood Drive, State College, Pennsylvania. In 1991, GGH acquired the yacht Golden Greek II, 100 feet in length, which required documentation by the United States Coast Guard, rather than a title issued by a state. The vessel was documented on February 21, 1991, by the Coast Guard, showing GGH, a Delaware Corporation as owner and the home port as Philadelphia, Pennsylvania. Golden Greek II is an ocean going vessel which has been engaged in the pleasure charter business in the State of Florida. The vessel has been registered in the State of Florida for 1991-92, 1992-93, and 1993-94. GGH has no principal place of business in the State of North Carolina. It does not engage in business in the State of North Carolina. In 1991, Golden Greek II docked at Wrightsville Beach just over two months as a port of convenience while the vessel was prepared for the next charter season. From November 1991 until May 1992, the vessel was engaged in the charter business in Florida. On May 6, 1992, it docked at Wrightsville Beach as a port of convenience to prepare for the next charter season. Except for brief trips, it remained there until September 27, 1992. The vessel was again engaged in charter operations from its Florida base from September 1992 until May 1993. On May 4, 1993, the Golden Greek II docked at Wrightsville Beach as a port of convenience to prepare for the next charter season. Except for brief absences, it remained at Wrightsville Beach until September 7, 1993. It has not been back to Wrightsville Beach since that date. Delaware has no personal property tax. Florida does not tax boats of this kind. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 868 The Golden Greek II maintains no dock space at Wrightsville Beach, but only rents space on a daily basis while in port. There are two small Yamaha boats aboard the Golden Greek II. Certificates of title were issued by the State of Florida. Taxes on charters are paid to the State of Florida. Delaware does not tax personal property. While Florida has a tax on tangible personal property, it does not apply to boats which are licensed or registered. From a legal position, the history of the presence of the Golden Greek II in North Carolina and its presence in New Hanover County from May 4, 1993 until September 7, 1993 did not bring it within the jurisdiction of the State for the imposition of ad valorem taxes. Any attempt to tax anything not wi thin the jurisdiction of the State violates the Fourteenth Amendment to the Constitution of the United States. Also, the Golden Greek II was not "situated" (more or less permanently located) in New Hanover County as defined in N.C.G.S. 105-304(b) (1). In summary, the newspaper reported the boat stayed in New Hanover County for more than six months, which is not true. This is a foreign corporation with no business in New Hanover County; hence, the discovery and penalty should be denied. New Hanover County spends a great deal of time recruiting business and tourism and it is unfortunate for the County to discourage this type of business. All the documentation requested has been prepared. As to how one's personal residence is determined, the law is very clear. If you live in North Carolina for six months and one day, you are a resident and are expected to pay a North Carolina Income Tax. The Tax Administrator does an excellent job for New Hanover County; however, he would recommend that the County Attorney's office render legal opinions on the interpretation of the law, not the Tax Administrator. vice-Chairman Mathews inquired as to whether the boat has been advertised in North Carolina as a charter boat. Attorney Williams stated the charter boat is advertised out of Ft. Lauderdale, Florida. The charter season runs from September until May. During the off-season, the boat is brought to Wilmington for repairs so it will be ready for the next charter season in Ft. Lauderdale. Commissioner Sisson commented on the money involved with moving the boat from Florida to Wrightsville Beach and inquired as to why the boat is brought to Wilmington for renovation and repairs when the renovation services in Florida are much more extensive? Attorney Williams reported dockage of a 115 foot boat in Ft. Lauderdale, Florida, for routine repairs is much more expensive than in Wilmington. Also, New Hanover County is a delightful place, and the owner enj oys using Wilmington as the Port of Convenience. Assistant County Attorney, Andrew Olsen, presented background information on the law and reported the question to be answered is whether New Hanover County can be defined as the permanent location of the business or whether the business is permanently located in Ft. Lauderdale, Florida. vice-Chairman Mathews inquired as to whether the boat lS being taxed and if so, where is the tax being paid? Assistant County Attorney Olsen reported an ad valorem use tax is not being paid anywhere because the State of Florida does not have an ad valorem use tax. Attorney Williams reported the company is paying other types of taxes ln Florida. Also, Delaware does not have an ad valorem use tax. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 869 Attorney Williams, again reiterated, that the Golden Greek II under North Carolina State law should not be taxed because it is a foreign corporation with no business in New Hanover County and has never stayed in New Hanover County for more than six months. He expressed concern for the Tax Administrator feeling that if the boat is not taxed in either Florida or Delaware, it should be taxed somewhere. Motion: Commissioner Sisson MOVED, SECONDED by Vice-Chairman Mathews to uphold the discovery of the Tax Administrator. Upon vote, the MOTION DID NOT CARRY AS FOLLOWS: Voting Aye: Commissioner Sisson Vice-Chairman Mathews Voting Nay: Commissioner Barone Commissioner Caster Chairman Greer Due to failure of the motion, the discovery was not upheld. INTRODUCTION OF BOND ORDER AUTHORIZING THE ISSUANCE OF $13,900,000 CAPE FEAR COMMUNITY COLLEGE BONDS AND $39,900,000 SCHOOLS BONDS OF THE COUNTY OF NEW HANOVER AND CALLING FOR THE PUBLIC HEARING TO BE HELD ON JANUARY 3, 1994 County Attorney Copley requested the Clerk to the Board to record the entire resolutions into the record to avoid reading the bond orders. Commissioner Barone introduced the following bond orders: BOND ORDER AUTHORIZING THE ISSUANCE OF $13,900,000 COMMUNITY COLLEGE BONDS OF THE COUNTY OF NEW HANOVER WHEREAS, the Board of Commissioners of the County of New Hanover has received and considered a resolution from the Board of Trustees of Cape Fear Community College including a request that the Board of Commissioners provide and improve additional Community College facilities in the County; and WHEREAS, the Board of Commissioners of the County of New Hanover deems it advisable to make the improvements hereinafter described; and WHEREAS, the Board has caused to be filed with the Secretary of the Local Government Commission of North Carolina an application for Commission approval of the bonds hereinafter described as required by The Local Government Finance Act, and the Secretary of the Local Government Commission has notified the Board that the application has been filed and accepted for submission to the Local Government Commission; NOW, THEREFORE, BE Hanover, IT ORDERED by as follows: the Commissioners of the County of New Section 1. The Board of Commissioners of the County of New Hanover has ascertained and hereby determines that it is necessary to provide improvements to community college facilities, including the construction of new facilities and expansion of existing facilities at Cape Fear Community College, and including the acquisition and installation of necessary furnishings, machinery and equipment, and the acquisition of land or rights-in-land required therefor, and to pay capital costs of such improvements. Section 2. In order to raise the money required to pay capital costs of providing the improvements as set forth above, in addition to any funds which may be made available for such purpose from any other sources, bonds of the County of New Hanover are hereby authorized and shall be issued pursuant to The Local NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 870 Government Finance Act of North Carolina. The maximum aggregate principal amount of said bonds authorized by this bond order shall be $13,900,000. Section 3. A tax sufficient to pay the principal of and interest on said bonds when due shall be annually levied and collected. Section 4. A sworn statement of the County's debt has been filed with the Clerk to the Board of Commissioners and is open to public inspection. Section 5. This bond order shall take effect when approved by the voters of the County at a referendum. BOND ORDER AUTHORIZING THE ISSUANCE OF $39,900,000 SCHOOL BONDS OF THE COUNTY OF NEW HANOVER WHEREAS, the Board of Commissioners of the County of New Hanover has received and considered a resolution from the New Hanover County Board of Education including a request that the Board of Commissioners provide and improve additional school facilities in the New Hanover County School Administrative Unit; and WHEREAS, the Board of Commissioners of the County of New Hanover deems it advisable to make the improvements hereinafter described; and WHEREAS, the Board has caused to be filed with the Secretary of the Local Government Commission of North Carolina an application for Commission approval of the bonds hereinafter described as required by The Local Government Finance Act, and the Secretary of the Local Government Commission has notified the board that the application has been filed and accepted for submission to the Local Government Commission; NOW, THEREFORE, BE Hanover, IT ORDERED by as follows: the Commissioners of the County of New Section 1. The Board of Commissioners of the County of New Hanover has ascertained and hereby determines that it is necessary to provide improvements to school facilities in the New Hanover County School Administrative Unit, including the construction of new schools and the renovation and expansion of existing school facili ties, and including the acquisition and installation of necessary furnishings, machinery and equipment and the acquisition of land or rights-in-land required therefor, and to pay capital costs of such improvements. Section 2. In order to raise the money required to pay capital costs of providing the improvements as set forth above, in addition to any funds which may be made available for such purpose from any other sources, bonds of the County of New Hanover are hereby authorized and shall be issued pursuant to The Local Government Finance Act of North Carolina. The maximum aggregate principal amount of said bonds authorized by this bond order shall be $39,900,000. Section 3. A tax sufficient to pay the principal of and interest on said bonds when due shall be annually levied and collected. Section 4. A sworn statement of the County's debt has been filed with the Clerk to the Board of Commissioners and is open to public inspection. Section 5. This bond order shall take effect when approved by the voters of the County at a referendum. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 871 Motion: Commissioner Mathews MOVED for adoption of the following resolution: WHEREAS, the bond orders entitled, "BOND ORDER AUTHORIZING THE ISSUANCE OF $13,900,000 COMMUNITY COLLEGE BONDS OF THE COUNTY OF NEW HANOVER," and "BOND ORDER AUTHORIZING THE ISSUANCE OF $39,900,000 SCHOOL BONDS OF THE COUNTY OF NEW HANOVER," have been introduced at the meeting of the Board of Commissioners held on December 21, 1993, and the Board desires to provide for the holding of public hearings thereon and the submission of a statement of debt in connection therewith as required by The Local Government Bond Act; NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the County of New Hanover as follows: (1) The public hearing upon said bond orders shall be held on the 3rd day of January, 1994, at 6:30 o'clock P.M. at 320 Chestnut Street, Room 100, in Wilmington, North Carolina. (2) The Clerk to the Board of Commissioners is hereby directed to cause a copy of each bond order to be published with notice of each such hearing in the form prescribed by law ln a qualified newspaper no fewer than six days prior to each such public hearing. (3) The County's Finance Officer is hereby directed to file with the Clerk to the Board of Commissioners, prior to publication of the bond orders with the notices of such public hearings, a statement setting forth the debt incurred or to be incurred, the appraised value of property subject to taxation by the County and the net debt of the County. The MOTION WAS SECONDED by Commissioner Caster and unanimously adopted. Copies of the resolutions and extract of minutes are contained ln Exhibit Book XXI, Page 29. BREAK Chairman Greer called a break from 12:03 P.M. until 12:10 P.M. ADOPTION OF RESOLUTIONS AWARDING BIDS FOR CONSTRUCTION OF THE ANIMAL CONTROL FACILITY (CONTRACT #94-0199-A; CONTRACT #94-0199-B; CONTRACT #94-0199-C; AND CONTRACT #94-0199-D) AND APPROVAL OF BUDGET AMENDMENT #94-025 County Manager O'Neal reported multiple prime bids have been received for the construction of a new Animal Control Facility. The bids have been reviewed by the Animal Control Facility Task Force, Finance Director and County Manager's Office. The bid process and procedures used in the development of this project follow completely the policies established by the Board of County Commissioners. Staff recommends contract awards as follows: SUB-TOTAL $595,065 55,123 66,850 74,180 $791,218 General Contract: Group III Management, Inc. Electrical Contract: Watson Electrical Co. HVAC Contract: T. A. Woods Company Plumbing Contract: Kelly Plumbing Company Furniture and Fixtures Contingency TOTAL 10,000 40,000 $841, 218 Chairman Greer commented the overage of the construction bids received and requested staff to use the contingency funds sparingly in order to make up for this additional cost. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 872 Motion: Commissioner Sisson MOVED, SECONDED by Vice-Chairman Mathews to adopt the resolutions awarding the bids as recommended by Staff and approve the following Budget Amendment. The Chairman was authorized to execute the necessary contract documents. Upon vote, the MOTION CARRIED UNANIMOUSLY. Budget Amendment #94-025 - Animal Control Facility Capital Project Debit Credit Animal Control Facility Installment Loan Proceeds $841,218 Animal Control Facility Capital Project Expense $841,218 Purpose: To budget anticipated cost of the project. The project cost is expected to be $891,218. Funds were budgeted in the amount of $50,000 for architectural expense when the Project Ordinance was approved on May 17, 1993. Copies of the resolutions are hereby incorporated as a part of the minutes and are contained in Exhibit Book XXI, Page 29. Copies of the contracts are on file in the Legal Department. ADOPTION OF SOLID WASTE CONSTRUCTION PROJECT ORDINANCE AND ASSOCIATED BUDGET AMENDMENT #94-024 - ENVIRONMENTAL MANAGEMENT County Manager O'Neal requested the adoption of the following Proj ect Ordinance to establish the budget for the Solid Waste Construction Project. These projects will be funded with proceeds of the GS1591 Special Obligation Bond proceeds as follows: PROCEEDS FROM SALE OF BONDS $3,407,000 Design/Construction C&D Processing Center $1,230,000 Equipment related to C&D Processing Center 634,100 Design/Construction of Landfill Cell 646,000 Closure of Landfill Cell 229,000 Construction of Office-Maintenance Facility 225,000 Equipment 437,700 Contingency 5,200 TOTAL $3,407,000 Motion: Mathews approve budget. Commissioner Sisson MOVED, SECONDED by Vice-Chairman to adopt the Solid Waste Construction Project Ordinance and the following Budget Amendment to establish the project Upon vote, the MOTION CARRIED UNANIMOUSLY. 94-024 Environmental Management Debit Credit Environmental Manaqement Bond Proceeds $3,407,000 Environmental Manaqement Capital Project Expense $3,407,000 A copy of the Project Ordinance is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXI, Page 29. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 873 AWARD OF CONTRACT #94-0191 TO TRI-STATE CONSULTANTS, INC. FOR IMPROVEMENTS TO ASH HANDLING AREA, PAVING, AND DRAINAGE - WASTEC Director of Environmental Management, Ray Church, reported after the second advertisement, only one bid was received. On the day prior to the bid opening the vibrating conveyor located in the ash handling area became unsafe to operate. A decision was made to remove the conveyor. Recognizing this would alter the scope of the work being bid, Staff contacted the Finance Department to determine if the bids should be opened. The Finance Department advised that if the changes were not a significant portion of the scope of work, the bids could be opened and any changes necessary could be negotiated with the lowest responsible bidder. Since only one bid was received, the bidder was advised of the change in the scope of service and negotiations were held to include the necessary changes. Staff recommends award of the bid to Tri-State Consultants, Inc. in the amount of $90,821. Motion: Commissioner Barone MOVED, SECONDED by Commissioner Sisson to adopt a resolution awarding the bid to Tri-State Consultants, Inc., the lowest responsible bidder, in the amount of $90,821 as recommended by Staff. The Chairman was authorized to execute the contract documents. 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 XXI, Page 29. MEETING CONVENED FROM REGULAR SESSION TO HOLD A MEETING OF THE NEW HANOVER COUNTY WATER & SEWER DISTRICT Motion: Commissioner Barone MOVED, SECONDED by Commissioner Sisson to convene from Regular Session to hold a Regular Meeting of the New Hanover County Water & Sewer District. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer convened from Regular Session at 11:50 A.M. Motion: Commissioner Barone MOVED, SECONDED by Commissioner Caster to reconvene to Regular Session. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer reconvened to Regular Session at 12:15 P.M. COMMITTEE APPOINTMENTS APPOINTMENTS TO THE NEW HANOVER COUNTY BOARD OF HEALTH Chairman Greer reported three vacancies exist on the Board of Health in the following categories: (1) Dentist; (2) Professional Engineer; and (3) General Public. Only one application has been received for the dental category, which is Spiro James Macris, who is currently serving and desires to be reappointed. Three applications have been received in the engineering category with Mark A. Veenstra desiring to be reappointed. Thirteen applications have been received in the general public category with John Coble desiring to be reappointed. Motion: Commissioner Barone MOVED, SECONDED by Chairman Greer to reappoint Spiro James Macris to serve another 3-year term on the Board of Health as the dentist representative. The term is to expire December 31, 1996. Upon vote, the MOTION CARRIED UNANIMOUSLY. Motion: Vice-Chairman Mathews MOVED, SECONDED by Commissioner Barone to reappoint John Coble to serve another 3-year term on the Board of Health as an at-large representative. The term is to expire December 31, 1996. The floor was opened for discussion. Commissioner Sisson recommended reappointment of persons to serve on boards if they have served well and desire to be reappointed, but stated at some point the Commissioners must NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 874 recognlze there lS no minority representation on the Board of Health. Commissioner Barone stated the Commissioners have the right to reappoint or not to reappoint persons eligible to serve a second term on any board or committee. Commissioner Sisson stated the decision for reappointment should be based on performance. Upon vote, the MOTION CARRIED UNANIMOUSLY for reappointment of John Coble to serve on the Board of Health. Chairman Greer opened the floor to receive nominations for the appointment of a professional engineer to the Board of Health. Commissioner Barone nominated Glenn A. Davis. The nomination was seconded by Vice-Chairman Mathews. Commissioner Sisson nominated Mark A. Veenstra for reappointment. The nomination was seconded by Commissioner Caster. There being no further nominations, Chairman Greer declared the nominations closed. Vote: Chairman Greer called for a vote on the appointment of Glenn Davis to serve on the Board of Health in the professional engineer category. Upon vote, the MOTION DID NOT CARRY AS FOLLOWS: Voting Aye: Commissioner Barone Vice-Chairman Mathews Voting Nay: Commissioner Caster Commissioner Sisson Chairman Greer Vote: Chairman Greer called for a vote on the reappointment of Mark A. Veenstra to serve another 3-year term on the Board of Heal th in the professional engineer category. The term is to expire December 31, 1996. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Caster Commissioner Sisson Chairman Greer Voting Nay: Commissioner Barone Vice-Chairman Mathews APPOINTMENTS TO THE HUMAN RELATIONS COMMISSION Chairman Greer reported two vacancies exist on the Human Relations Commission. Nine applications have been received to fill the vacancies. Chairman Greer opened the floor to recelve nominations. Commissioner Barone nominated Anthony Gentile, Jr. The nomination was seconded by Commissioner Caster. Commissioner Sisson nominated Frances W. Troy. No second was received on the nomination. Commissioner Caster nominated E. T. Townsend. The nomination was seconded by Vice-Chairman Mathews. Commissioner Sisson nominated Kathryn N. Robinson. No second was received on the nomination. There being no further nominations, Chairman Greer declared the nominations closed. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, DECEMBER 21, 1993 BOOK 23 PAGE 875 Vote: Chairman Greer called for a vote on the appointment of Anthony Gentile, Jr. to serve a 3-year term on the Human Relations Commission. The term is to expire December 31, 1996. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Barone Commissioner Caster Vice-Chairman Mathews Chairman Greer Voting Nay: Commissioner Sisson Vote: Chairman Greer called for a vote on the appointment of E. T. Townsend to serve a 3-year term on the Human Relations Commission. The term is to expire December 31, 1996. Upon vote, the MOTION CARRIED UNANIMOUSLY. ADDITIONAL ITEMS - COUNTY COMMISSIONERS Commissioner Sisson reported on a compliant from a citizen concerning a policy at the Animal Control Center which prohibits the adoption of certain breeds of dogs. He stated the Chairman of the Animal Control Advisory Committee, Ms. Donna Neal, informed him that a policy is under review, and the Committee hopes an arrangement can be found to allow a group or organization to adopt these animals without violating the existing State regulations. DISCUSSION OF HAVING A LEGAL OPINION RENDERED BY THE COUNTY ATTORNEY IN FUTURE TAX APPEALS Commissioner Caster expressed concern for being able to understand the tax laws and requested the County Attorney to provide a written legal opinion as part of the agenda packet when hearing future tax appeals. Consensus: It was the consensus of the Board to request the County Attorney to provide a legal opinion on tax laws when hearing future tax appeals. EXECUTIVE SESSION County Attorney Copley requested an Executive Session to discuss pending litigation. Motion: Commissioner Sisson MOVED, SECONDED by Commissioner Caster to convene to Executive Session for discussion of pending litigation. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer convened from Regular Session at 12:25 P.M. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Barone to reconvene to Regular Session. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer reconvened to Regular Session at 12:44 P.M. ADJOURNMENT Chairman Greer wished everyone a Merry Christmas and Happy New Year. Motion: Commissioner Barone MOVED, SECONDED by Commissioner Caster to adjourn. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer adjourned the meeting at 12:45 P.M. Respectfully submitted, Lucie F. Harrell Clerk to the Board