04-2010 April PBM
1 Minutes of the New Hanover County Planning Board April 1, 2010 The New Hanover County Planning Board met Thursday, April 1, 2010 at 5:30 p.m. in the Assembly Room of the Historic County
Courthouse, Wilmington, NC to hold a public meeting. Planning Board Present: Staff Present: Richard Collier, Vice-Chair Chris O’Keefe, Planning & Inspections Director Melissa Gott Jane
Daughtridge, Planning & Zoning Manager Sue Hayes Shawn Ralston, Senior Environmental Planner Sandra Spiers Sam Burgess, Subdivision Review Planner Sharon Huffman, Assistant County Attorney
Absent: Andy Heath Jay Williams, Chairman Ken Wrangell Richard Collier opened the meeting by welcoming the audience to the public hearing. Sam Burgess led the reciting of the Pledge
of Allegiance. Sue Hayes made a motion to approve the March Planning Board meeting minutes. Melissa Gott seconded the motion. The Planning Board voted 4-0 to approve the minutes. Item
1: Special Use Permit Modification (S-409M, 4/10) – Request by Donald Curry, Jr., PE for Autumn Corporation to modify the site plan for an existing special use permit by adding 17,400
square feet to the existing building and adding 47 new parking spaces. The site is classified as Transition on the 2006 CAMA Land Classification Map. Mr. Collier announced that this
item would be held until later in the meeting pending arrival of the applicant’s representative. Item 2: Conditional Rezoning Request (Z-900, 1/10) – Request by Beau Rivage Golf & Resort,
L.L.C. et al. to conditionally rezone 8.54 acres at 649 Rivage Promenade from R-15 Residential District to CD (B-2) conditional district to convert an existing golf center and condominium
complex into a 2-story golf resort and function facility with an 80-room hotel and separate private clubhouse. The site is classified as Transition on the 2006 CAMA Land Classification
Map. Jane Daughtridge showed maps and photographs of the property and of the surrounding area. Ms. Daughtridge also provided information pertaining to land classification, access, level
of service, zoning, and flood hazard areas. Ms. Daughtridge noted this information was also presented at the January planning board meeting. She stated that one particular condition
of interest to staff is that none of the open space can be reduced because the golf course has been
2 determined to be the open space requirement for the performance residential property that is known as Beau Rivage subdivision. She commented that there will be a slight increase in
open space with the new proposal based on the calculations of the original open space and the proposed open space. Ms. Daughtridge said staff requested that the item be continued to
the April meeting because questions had been raised about whether appropriate notice had been made to the adjacent homeowners. Staff decided to err on the side of caution by notifying
every property owner who was adjacent to the golf course. Chris O’Keefe presented the staff summary, noting the entire Beau Rivage community is a performance residential development
originally approved in 1986 and amended in stages over the years for a total of 590 residential units. He explained the golf course is an integral part of the development in that it
was used to satisfy the open space requirement for the approved residential units. The parcel for the clubhouse also included approval of thirty-two (32) condominium units. Operation
of the clubhouse and original condominiums has changed to become more of a commercial venture than is allowed under R-15 residential standards. For example, hotels and restaurants are
not allowed in an R-15 residential district. Therefore, to continue to operate or expand these commercial facilities, a new approach will be required. The owner is proposing a conditional
rezoning to CD (B-2) in order to accommodate the hotel and public restaurant, as well as a 350-seat facility to rent out for events, in addition to an enlarged clubhouse. Conditional
district rezoning is described in the county ordinance as one intended for firm development proposals and shall not be used for tentative projects without definitive plans. This case
appears to meet the spirit and intent of that guidance. Also in accordance with section 111-2.1 of the ordinance, the applicant has met with the Beau Rivage homeowners association to
review the particulars of their proposal and a letter of support from the HOA president has been included in the planning board package for the board’s consideration. A second meeting
was held at the request of the planning board with property owners adjacent to the project that had not been included in the homeowners’ association meeting. Staff would like to note
that the location of a B-2 highway commercial district on private streets rather than a public highway has not been considered prior to this proposal, but because the property has access
to Carolina Beach Road along the direct route of Beau Rivage Drive without taking traffic past developed residential components of the community, this situation is somewhat unique. By
pursuing the conditional zoning district, the applicant provides a high degree of predictability as to the appearance and impact of the project, as well as certainty of the uses that
will be in place. This proposal can’t be severed from the Beau Rivage performance residential development because the two are inextricably linked through the open space requirement so
this parcel must remain part of the subdivision even if the rezoning is approved. Staff does recommend the rezoning part of this project. Chris O’Keefe then presented the “findings of
fact”. 1. The Board must find that the use will not materially endanger the public health or safety where proposed and developed according to the plan as submitted and approved.
3 Evidence in the record at this time supports a finding that the use will not materially endanger the public health or safety where proposed road improvements required by NCDOT are
implemented. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. Evidence in the record at this time supports a finding that
the use meets all required conditions and specifications of the Zoning Ordinance. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting
property or that the use is a public necessity. The evidence in the record at this time supports a finding that the use will not substantially injure the value of adjoining or abutting
property. 4. The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it
is to be located and in general conformity with the plan of development for New Hanover County. The evidence in the record at this time supports a finding that the use will be consistent
with the land use plan and in harmony with the neighborhood if developed within the limitations of the project as proposed and with the required road improvements outlined in the TIA
approval letter for this project. Staff suggests that all the findings are positive. Staff would recommend a condition specifying that the road improvements mentioned in the TIA be included
in the final project if the board chooses to recommend approval. Mr. Collier opened the public hearing. Tom Johnson, an attorney with Nexsen Pruet, spoke on behalf of the applicant.
Mr. Johnson stated that the applicant agreed with the staff report and agreed to the findings of fact as proposed by the staff, including following the TIA recommendations as a condition
to the conditional use request. Mr. Johnson noted the applicant has shared this plan with the homeowners association and has received the support of the homeowners’ association for the
redevelopment and expansion project. Cindee Wolf of Withers & Ravenel stated she is the land planner for the project. Ms. Wolf noted the existing facility has become very popular and
expansion is warranted economically. The county’s policies for growth and development encourage continued efforts to attract and retain businesses and the owners of the club and condominiums
seek to rebuild and expand this project into a comprehensive resort facility. Along with the existing golf course, there would be a total of 80 hotel rooms, a banquet center, a membership
clubhouse, and pools and tennis courts would be revamped for the current membership and hopefully, future members. As more residential
4 development occurs in the southern part of the county, this hotel use would be a logical use to have facilities closer to where people live and accessible. As far as justification
for the rezoning, this parcel is in the CAMA land use classification of Transition. The purpose of this classification is to provide for continued and future intensive development and
redevelopment of land where urban services are planned or are already in place. The locations of the areas are based upon land use planning policies promoting optimum efficiency and
land utilization and public service delivery. Mixed use projects like this have become a popular means of providing innovative opportunities for integrating diverse, but compatible uses
into a single development that’s unified by distinguishable features. Some of the architectural features are very similar to what’s already developed around Beau Rivage and in the southern
part of the county. She noted the most important issue is that the redevelopment of the property presents an excellent opportunity to create an efficient, sustainable, and quality facility
because the proposed layout decreases overall the impervious surfaces within the project. She commented that Ms. Daughtridge had shown the exhibits earlier in her presentation that reflect
the revised layout on the aerials provided by Ms. Wolf. Along with that, low impact development methods were recommended by the TRC, such as using native, low water use plantings in
the landscape and improvement of the storm water management, and they believe all of that will enhance the community. As far as the layout, all permits will have to be gained and must
be compliant with zoning regulations and state erosion control rules. Utilities are already onsite through Aqua North Carolina. The technical points of the plan all meet the general
plan and requirements of the code. Ms. Wolf stated the rezoning and the conditional use as prepared meets the criteria as pointed out in the staff’s recommendations presented by Mr.
O’Keefe. Tom Johnson stated in conclusion, certainly this provides a redevelopment improvement of an existing facility, positive economic impact, and an opportunity to provide a facility
that the residents of Beau Rivage can take advantage of, as well as visitors and other people residing in that part of the county. Mr. Johnson reserved time for rebuttal at the appropriate
time. Matt Nichols, an attorney with Shanklin & Nichols representing Isabella Holdings Company, spoke on behalf of the opposition. Mr. Nichols stated that Isabella Holdings Company is
by far the most impacted property owner in this rezoning request. They are adjacent property owners. Mr. Nichols presented a PowerPoint reflecting that Isabella Holdings Company owns
all of the property between the site and Carolina Beach Road. They also own the roads in Beau Rivage, which are private. Their foremost point is that this rezoning request does not meet
the technical criteria of the B-2 zone, which is a highway business district. The purpose of the district is is to provide grouping and development of roadside businesses, which will
best accommodate the needs of the motoring public and businesses demanding high volume traffic. The district’s principal means of egress and regress shall be along collector roads, minor
arterials or major arterials as designated on the county’s thoroughfare classification plan. Mr. Nichols distributed a copy of the county’s thoroughfare classification plan. He pointed
out that, not only is Beau Rivage not one of these designated streets, it’s not even shown on the plan. Therefore, without a doubt, it does not meet the criteria of a B-2 zone. Beyond
that, if you go to the minimum front yard requirements in a B-2 zone, you have to have 50 feet along a US or NC numbered highway or major thoroughfare as designated by the Wilmington
area thoroughfare plan. The front yard minimum is 35 feet along all other public highways or streets. Mr. Nichols stated it simply does not meet the criteria. Mr. Nichols pointed out
on the county zoning map that there is no B-2 in
5 the middle of any performance residential subdivision anywhere in the county. He noted that B-2 is located on North College Road, parts of Carolina Beach Road, and parts of major thoroughfares.
Mr. Nichols stated he thought the county’s trend was toward no new B-2 zoning south of Monkey Junction based on previous planning board meetings he had attended. Mr. Nichols said that
in any event, it would be unprecedented to have a B-2 zoning within a performance residential subdivision. He noted that Beau Rivage was one of the oldest performance residential subdivisions
in the county. Mr. Nichols showed the board the 1986 plan and the 2002 updated preliminary site plan for Beau Rivage. Sue Hayes asked Mr. Nichols to display the site plans so the board
members could view them. Mr. Nichols noted that there were detailed notes on the plans and both plans were signed by Dexter Hayes. He reiterated that the roads are private and he had
never heard of the county wanting B-2 traffic on neighborhood roads. He stated it is a performance residential subdivision. His client has the right to build residentially on the property
between this site and Carolina Beach Road. Mr. Nichols also pointed out that the back entrance to Beau Rivage is gated and requires card access to get through to Rivage Promenade. The
1986 site plan reflects that it is a 612 acres development in the 80’s. There was a unit allocation made then that has not changed. There are a finite number of units that can be built
in Beau Rivage. On the 1986 plan, Mr. Nichols pointed out the notation that all streets in the subdivision are for private use and that the land was approved originally and still for
single family lots, several multi-family areas, a golf course and the clubhouse. The motel and hotel were not contemplated at that time. The property is being used as a hotel now and
is a non-conformity and this expansion was never envisioned. The allocation of the density for the subdivision has been ongoing for two decades. On the 2002 plan, it shows that all along,
as units are built there, it subtracts from the density and his client owns all of the remaining density, 112 units, within Beau Rivage. Mr. Nichols noted that the property sought for
rezoning, the Beau Rivage Clubhouse condominiums, is actually part of the golf course. Their deed references Tract A, the golf course. He stated this is the condo plat for the existing
condominiums, which was recorded in 1988. He then showed the golf course tract as recorded in 1998, which shows that all of the property surrounding the original condominium is part
of the golf course and is Open Space. The disclosure printed on all of the Beau Rivage Golf Course maps states, the golf course tracts shown on this plat are specifically linked to the
Open Space requirement and the overall density allocation to Beau Rivage Plantation. Future use and or conversion of these areas shall only be in accordance with New Hanover County Zoning
and Subdivision regulations. The developer is proposing to expand the current facility by more than doubling the size of it in terms of rooms into the open space. Finally, everything
surrounding the condominiums is open space and is specifically on the maps. Expanding outside of that is building into open space. It affects the density and allocation and the way Beau
Rivage has been approved over the last two decades. Mr. Nichols strongly disagreed that this would not increase the density of Beau Rivage. The existing condominiums have always been
treated as units. It is clearly marked on the 2002 map. He pointed out the use will remain the same whether the units are used as condominiums or as a hotel. The current units don’t
have kitchens. Section 81 -Minimum Parking Requirements, the New Hanover
6 County Zoning Ordnance specifically addresses hotels/motels and links them with units to determine parking. Mr. Nichols commented if a hotel or motel doesn’t affect the density, does
that mean his client can put two high-rise hotels between the proposed site and Carolina Beach Road and not affect the density. Mr. Nichols stated he doesn’t believe that is true. Mr.
Nichols summed it up to say the CD (B-2) doesn’t comply with the ordinance, the minimum requirements have not been met, and this use would increase the density for Beau Rivage. He noted
that the County was a party to the lawsuit several years ago, which provided the framework under which Beau Rivage was supposed to developed. In that agreement, it clearly states that
the golf course map satisfied and set aside the open space requirement for Beau Rivage. Mr. Nichols thanked the board for considering his clients’ points and offered to answer any questions
the board had. He commented that Nathan Sanders was also present and may speak upon rebuttal. rebuttal. Nathan Sanders, explaining he was a long time developer in Wilmington, said the
County had always been consistent and thorough throughout the years in requiring developments to meet the rules and ensuring that developers met all requirements. He stated clearly this
property, with all the points mentioned, does not meet the criteria to be rezoned to B-2; and secondly, he believes that doubling the hotel capacity and adding a 350 seat banquet facility
will have an adverse effect on his property and its value, as well as his ability to develop the property to its highest and best use. He also noted that every vehicle visiting the proposed
facility will travel past his property. Thomas Johnson, speaking on behalf of the applicant, stated that the people most impacted by the project are the property owners and residents
and the HOA has supported this project as presented. The private road issue isn’t pertinent because a private road can serve as a collector road. As a private road, it won’t show up
on a highway map, but it is still a collector road. This street is a wide street that is separated at points by a median and clearly meets the standards. Mr. Johnson noted there are
many times that a hotel will not be located on a main road, but is accessed via a collector road. The code states that if you are on a major highway, you have to meet a 50 feet setback;
however, it doesn’t require your project to be on a major highway because the other provision states that you can connect via a collector road, which this project does. Mr. Johnson explained
that previous plans for Beau Rivage state that the County can change the plan by virtue of their regulations and his client is simply requesting a change based on those regulations.
Mr. Johnson doesn’t believe this project will adversely impact the performance residential; but feels it will enhance it. He noted Ms. Wolf’s statement that the proposed project will
actually create more open space by having a smaller building footprint. It will not encroach upon the open space. He stated that although the property may be gated in the back, the property
is not gated in the front. In his opinion, the country club and the condominium property were treated separately in terms of density in the agreement referenced by Mr. Nichols. Mr. Johnson
noted that this change does not warrant a TIA because it will generate less than 100 trips per day, but his client agreed to conduct a TIA. The result showed that traffic is not a concern
for this project. Overall, this project is consistent with an existing use and an enhancement to the current use on a reduced footprint and in a more environmentally friendly way, with
low impact techniques.
7 Mr. Johnson asked the board to support this project and emphasized that the community clearly supports the plan. Matt Nichols commented that the project either meets the ordinance
or it doesn’t. He reviewed his objections again for the board and reiterated that this project, if approved, would set a new precedent. Richard Collier closed the public hearing. Sandra
Spiers asked Mr. O’Keefe to clear up the issue of whether the project would have any effect on the density owned by Isabella Holdings in the subdivision. Mr. O’Keefe stated that the
project would not have any impact on the density of Isabella Holdings. The density owned by Isabella Holdings would remain unchanged. Ms. Spiers asked who maintains the roads within
the subdivision. Scott Holmes, with Murchison, Taylor, and Gibson, representing the Beau Rivage Homeowners Association, stated that the homeowners association maintains the roads and
has been doing so for some time. He commented that although the roads are private, the roads are noted on the plat to be common areas of the association. Ms. Spiers asked Mr. Holmes
to clarify that the Beau Rivage Homeowners Association, which provided a letter of support for the project, actually maintains the road so any damage that is done to the road by this
project will be repaired and maintained by the homeowners association. Mr. Holmes confirmed that the Beau Rivage Homeowners Association actually maintains the road and would be responsible
for any needed repairs. Nathan Sanders stated that nowhere on the map does it declare that this road is part of the open space of Beau Rivage. He confirmed that the homeowners association
does pay for the maintenance of the roads, but the roads are currently owned by Isabella Holdings. Mr. Sanders said this is an ongoing debate with the homeowners association and there
may come a day when the roads are owned by the homeowners association, but as of this moment, the road is owned by Isabella Holdings. Mr. O’Keefe stated that the roads are actually dedicated
right-of-ways. No one actually pays taxes on the roads. Ms. Spiers commented that her concern was who actually paid for the maintenance of the roads in the subdivision. Sue Hayes asked
Mr. Nichols to point out on the map where the gates are located on the property and the location of the property owned by his client.
8 Nathan Sanders stated that all of the property between the proposed project and Carolina Beach Road is owned by his company. Sue Hayes asked staff to address the open space calculations.
Mr. O’Keefe stated that comparing the current plan to the proposed plan, there will be more open space in the proposed plan as noted by Ms. Daughtridge in her opening presentation. Mr.
O’Keefe asked Cindee Wolf to explain the calculations. Sue Hayes asked how it is possible to have more open space if you are expanding the project into the open space. Cindee Wolf explained
that they are adding to open space by utilizing landscape islands within the parking areas and adding additional green space around the buildings and along the streetscape. She noted
there is no green space within the existing parking areas. Sue Hayes asked the County Attorney if the proposed project meets the legal requirements of the zoning ordinance and whether
the county would be subject to court action if they recommend rezoning and it doesn’t meet the legal requirements of the zoning ordinance. Sharon Huffman noted if there is an appeal
to the court by an interested party and the court finds that it doesn’t meet the requirements of the ordinance, that would allow for a reversal of the decision. Ms. Huffman commented
that the primary issue about whether it meets the requirements of the ordinance is related to the streets. She stated her opinion is that a private road can be a collector road and noted
that issue has been discussed in great detail at several Private Roads Task Force meetings. It is not that unusual for a private road to be deemed a collector road. Ms. Huffman stated
that in her opinion, if a private road can be a collector road, that particular section of the ordinance could be considered met. Ms. Huffman also explained that the dimensional requirements
noted by Mr. Nichols apply to specific types of roads; however, the existence of the dimensional requirement does not mean that it necessarily applies to a road that is not included
in the types of roads that must meet dimensional requirements. Ms. Huffman stated that 55-4 has dimensional requirements that require certain measurements along certain types of roads.
If there is a dimensional requirement along a specific type of road, in this case perhaps a US or NC numbered highway, there has to be a certain requirement. But, there isn’t necessarily
a requirement for a road that is not specified so if this is not a US or NC highway, but is a private collector road, then there isn’t necessarily a requirement because it isn’t one
of the road types for which a dimensional requirement is specified. Chris O’Keefe noted that staff recognized this proposal was unique. It was a rezoning within an existing subdivision.
We think that there may be more of this kind of proposal in the future as the county becomes more dense and our demand for different land uses changes. In this case, the petitioner has
chosen to use our conditional use district, not the B-2 district. If you look at Section 59.7, it states what the conditional uses are. Staff knew the applicant may not be able to
9 meet all the requirements of the B-2 district, but it is consistent with the New Hanover County Land Use Plan and the objectives of this ordinance. Since the road is a recorded right-of-way
and is open to public use and the homeowners association has agreed with this use, staff has arrived at this recommendation. Sue Hayes asked for the definition of a collector road. Sam
Burgess explained that a collector road essentially collects local residential street traffic and is designed with a minimum of a 50 feet right-of-way and a 32’-36’ width of pavement.
Local residential streets would gravitate to collector roads. There is basically a hierarchy of the road system where local residential streets that do not have much traffic and basically
cater to local residential homes and lots essentially feed into a wider road network known as collector roads, which in turn feed traffic into the minor and major arterials. Ms. Hayes
asked if the road in question fits those criteria. Mr. Burgess stated that he would need to look at a road cross-section again of the area to make that determination, but essentially
this is a particular road that would feed other local residential streets out to Carolina Beach Road. Mr. O’Keefe commented that the Metropolitan Planning Organization does all of the
transportation planning for the area and they create a long range transportation plan that is called a road functional classification map. That map classifies all of the roads based
on the terms used today and this road is classified on that map as a neighborhood collector. We have relied on their road classification system to make our determinations in regard to
this project. Mr. Collier asked staff to explain how this parcel affects density in the subdivision. Mr. O’Keefe stated that this project does not affect the density in the subdivision.
In fact, it could be argued that there could be some additional density available because the parcel is 8.54 acres and had been historically zoned R-15. He stated that results in approximately
11 units which could be added to the density pool, which is under the control of Mr. Sanders and Isabella Holdings according to the settlement agreement reached in the courts several
years ago. Mr. Collier asked about the differences in the existing and proposed parking areas. He stated he understands the impervious surface is less in the proposed parking area, but
asked if the proposed parking areas will meet hotel code. He asked if we are truly getting more open space in this project. Chris O’Keefe stated that the proposed project does meet the
ordinance for parking and the developer will be bound by the plans they have presented and must protect the open space. Mr. Collier asked if there was any district less than highway
commercial that could be put into place that would still meet the letter of what the developer is trying to build. Mr. O’Keefe stated that the hotel use would require the B-2 zoning.
10 Melissa Gott made a motion to recommend rezoning Z-900 from R-15 to CD (B-2). Sue Hayes seconded the
motion. The Planning Board voted 4-0 to recommend rezoning Z-900 from R-15 to CD (B-2). Melissa Gott made a motion to recommend granting the special use permit subject to the condition
that the project meet the required road improvements outlined in the TIA letter of approval for this project. Sue Hayes seconded the motion. The Planning Board voted 4-0 to recommend
approval of the special use permit with the condition of meeting all the requirements of the TIA. The board recessed for 5 minutes. Item 3: Exceptional Design Zoning District (EDZD)
Rezoning Request (Z-897, 8/09) -Request by Wilshire Management Group to rezone approximately 9.93 acres at 611 Middle Sound Loop Road from R-15 Residential District to Exceptional Design
Zoning District (EDZD). The site is classified as Watershed Resource Protection on the 2006 CAMA Land Classification Map. This request is a modification from an initial request for a
conditional R-10 rezoning CD(R-10). Jane Daughtridge showed maps and photographs of the property and of the surrounding area. Ms. Daughtridge also provided information pertaining to
land classification, access, level of service, zoning, and flood hazard areas. Ms. Daughtridge noted the following details. The traffic level of service is FF, indicating a roadway that
is more than 1-1/4 times its capacity. The roadway classification is urban collector. The zoning map shows that this particular property is zoned R-15 and it is surrounded by R-20 zoning.
There is additional R-15 going south and north and there is an older subdivision of R-10. The R-20 districts were primarily created after the 1987 small area plan for the Middle Sound
-Ogden area and one of the recommendations in that plan was to decrease density because of environmental sensitivity, traffic concerns, and the lack of water and sewer services in the
area. The 2006 aerial photo shows that this property was a trailer park at that time. A more recent aerial photo shows that the mobile homes have been removed. She also pointed out one
small wet area on the northeast corner of the property. Jane Daughtridge reviewed the four core requirements met by the applicant. 1) Smart Location: The project is located on an infill
site. 2) Proximity to Water and Wastewater Infrastructure: The water and sewer authority has extended service to the area and is in the process of requiring residents to tap onto the
system. 3) Significant Species and Ecological Communities: The site does not provide a habitat for any protected or significant species or ecological communities according to the N.C.
Natural Heritage Inventory program. A map was not required because this information has been confirmed.
11 4) Wetland and Water Body Conservation and Preservation: The project must be located on a site that includes no jurisdictional wetlands, water bodies, or land within 100 feet of those
areas. There is an area of wetlands, which is identified as 404 wetlands, but the applicant has provided a letter from the Corps of Engineers stating the COE will not be claiming those
as jurisdictional wetlands. There will be an area of our COD attached to that, but there are no jurisdictional wetlands. 5) Floodplain Avoidance: This site is not in a floodplain so
staff did not provide a floodplain map. 6) Stormwater Management: A Low Impact Development (LID) stormwater management plan is required of all projects seeking an EDZD rezoning. The
preliminary plan appears to offer sufficient LID techniques to meet that criterion. Final approval will be determined through TRC review of the final plan submission if the rezoning
request is approved. Additional Requirements: Ms. Daughtridge stated the applicant is also required to satisfy twelve additional points to qualify for EDZD. The applicant has chosen
to satisfy the following additional requirements: 1) Bicycle and Pedestrian Access: The applicant will connect to a proposed bike route in the area, thereby earning two points. 2) Housing
and Jobs/Commercial Opportunity Proximity: The applicant will earn two points because the development will be within a ½ mile walk from pre-project full-time equivalent jobs equal to
or greater than the number of dwelling units in the project. There are 84 jobs at the nearby elementary school and 48 units proposed in the project so they do meet this requirement.
At the Market Street intersection, there is commercial activity, but there are no sidewalks. 3) Conservation Management of Habitat or Wetlands: The applicant is claiming two points for
the conservation management of habitat or wetlands. They will be creating a long term management plan for the wetlands area that will provided educational benefits and protection for
that area. 4) Certified Green Building: The applicant is proposing to meet the certified green building requirements, earning two points 5) Minimum Building Energy Efficiency: The applicant
proposes to meet Energy Star criteria in 90% or more of the residential buildings, earning four points. 6) Water Efficient Landscaping: The applicant proposes to meet this requirement,
earning two points. Ms. Daughtridge reported that per staff calculations, the applicants have met the absolute required core requirements, plus the required additional twelve points,
and earned an additional two bonus points so they would technically be eligible for eight units per acre. Chris O’Keefe then presented the following staff findings and recommendations
for the project in accordance with Section 53.6.5:
12 (1) As to the suitability of the proposals for the general type of function, the physical characteristics of the land, and relation of the proposed development to surrounding areas
and existing and probable future development. Staff has found that the residential development is a suitable function for the Middle Sound area and has been built that way for a long
time. There is continued demand for residential development in that area; however, there is long standing trend and tradition toward low density development and this would be a departure
from the low density development. Staff concludes that this proposal suits the function and characteristics of the land but challenges the long-standing development trend of lower density
residential development in the Middle Sound Community. The proposal also includes an innovative “Garden Park” amenity for the community which provides unique recreational open space
and an opportunity for residents to gather and mingle. (2) As to the sufficiency of supporting evidence in the application showing that the proposed location can meet the basic criteria
for exceptional design. Supporting evidence provided by the applicant is sufficient to show that the project can likely meet the core requirements for exceptional design. Certain requirements
such as LID approval and certified green building and water efficient landscaping will be fully confirmed when the final plan is reviewed by TRC. There is only one provider of jobs within
the ½ mile walk distance and no commercial options within walking distance. Commercial activity has been increasing about one mile away at the intersection of Market Street and Middle
Sound Loop Road in recent years. Staff concludes that the supporting evidence is adequate. The proposal would be very strong in a location with a greater mix of shopping and job opportunities
within a ½ mile walking distance, but despite its weak satisfaction of the smart location requirement, it does meet the minimum requirement and can likely satisfy all the core and and
additional requirements outlined in the ordinance to qualify for Exceptional Design Zoning District. The proposal as submitted also earns two (2) density bonus points for a total qualification
of 8 units per acre. Staff does not find that the building orientation points should be awarded since the site plan does not reflect it, and the intent to explore the option is not sufficient
to earn points. No bonus points are required for this proposal because the applicant is requesting less than the EDZD base of 6 units per acre. A total of 4.8 units per acre is requested.
13 (3) As to the relation to major roads and mass transit facilities, utilities and other facilities and services. Only one street access is present to serve the property, regardless
of the number of units allowed. The TRC will have to determine if the project can meet the normal connectivity ratio or emergency access standards. No mass transit is available to this
location. Market Street is approximately one mile from the site. The applicant proposes to include bicycle and pedestrian paths within the EDZD and also to contribute $15,000 toward
installation of an off-site bike/pedestrian facility from the EDZD to Ogden Elementary School, approximately ½ mile away. Accomplishing this connection to the school will strengthen
satisfaction of the intent of the proximity to jobs requirement as well as offering at least one limited transportation alternative to future residents which will become an even more
meaningful contribution to the neighboring Middle Sound community as the planned bike/pedestrian facility expands. Staff concludes that lack of interconnectivity with the surrounding
area and the provision of only one access point are the only significant weaknesses relating to infrastructure support. (4) As to the adequacy of evidence on unified control and the
suitability of any proposed agreements, contracts, deed restrictions, sureties, dedications, contributions, guarantees, or other instruments, or the need for such instruments, or for
amendments in those proposed. The entire property is shown on the New Hanover County tax records to belong to Wilshire Management Group, the applicant. The applicant is a limited liability
company incorporated in 2004 through the State of North Carolina for the described purpose of “real estate.” Staff concludes the applicant maintains unified control of the property.
(5) As to the suitability of plans proposed or the suggestion of conditions. The proposed site plan includes a detailed concept plan which demonstrates a broad array of positive design
features. The proposed 48 units are expressed as townhomes clustered in one, two and three-unit designs, preserving 61% of the site as common area open space and reducing permitted impervious
surfaces by nearly 15%. Low impact development techniques are demonstrated on the concept plan and in text. A small area of swamp forest will remain undisturbed. A “Garden Park” community
garden and gathering space has been included along the front of the project, allowing for interaction with the broader community. Staff concludes that the proposed site plan is suitable
to express the intentions of the applicant and, in general, the satisfaction of required elements.
14 (6) As to the consistency with the County’s adopted Land Use Plan and other adopted plans for development in the vicinity, and suggesting how the rezoning might be reasonable and
in the public interest if approved. In May of 1987, the county adopted the Middle Sound/Ogden . . . Future Directions plan. Major concerns outlined in the plan included traffic congestion;
character, density and rate of residential development; and environmental protection challenges in fragile areas served only by septic tanks. The primary strategies for addressing these
concerns included signalization and turn lanes at Market Street, along with added connectivity through Gorman Plantation to the south and Darden Road to the north; reduction of allowable
residential density; and construction of a sewer system. Soon after the plan was adopted, substantial rezoning took place to change most undivided property to R-20. Public water and
sewer are now available in the community and Conservation Overlay standards are in place to protect fragile areas. The intersection of Market Street and Middle Sound Loop Road has been
signalized with turning lane improvements. A traffic circle has been approved for the intersection of Middle Sound Loop Road and Darden Road to alleviate congestion at Ogden Elementary
and interconnectivity has been established through Gorman Plantation and Darden Road. The 2006 CAMA Land Use Plan includes policies and land classifications that express the county’s
goals and strategies for steering growth to areas suitable for development while protecting the fragile ecosystems that sustain our economic appeal and our quality of life. Several strategies
encourage adoption of exceptional design standards to mitigate the negative impacts of development in sensitive areas. Low impact stormwater management standards and mixed use options
are consistent with the plan. At the end of 2009, a new district, Exceptional Design Zoning District (EDZD) was added to the zoning ordinance. This district encompasses many requirements
of smart and sustainable design by creating a menu of siting and design elements in order to qualify for consideration. Staff concludes that the proposal challenges the 1987 neighborhood
growth strategy to keep density low, but complies with the expressed goals of the 2006 CAMA Land Use Plan. Staff feels the proposal can be considered reasonable since it asks for less
than the allowable EDZD base density and meets the core elements of the Exceptional Design Zoning District. It can be considered in the public interest because the impacts of additional
density are offset by substantial increases in open space, reductions in impervious surface coverage and a commitment to establish a bike/pedestrian facility between the project and
Ogden Elementary School in an area without existing sidewalks or bike facilities. Mr. Collier opened the public hearing. Jim Hundley spoke on behalf of Wilshire Management Group. The
property was originally purchased as a mobile home park with 28 homes on it. The original plan was to construct 28 single family homes on the site, but the sewer moratorium was in place
and an economic
15 collapse has occurred since then. He reported that the team has done their due diligence with this EDZD request. He asked the development team to stand as he introduced them to the
board. Mike Brown, of Cape Fear Commercial, spoke on behalf of the applicant. First, they met with staff and were referred to the 1987 Middle Sound plan, which included a survey to identify
the major concerns of the neighborhood. He noted they started this process early in 2009. They found that the demand for a stereotypical single family subdivision had declined drastically
over the last two years, in favor of more innovative community concepts, which encompass environmentally friendly site design techniques and low impact and low maintenance home construction.
He reported that the group’s goals for the project are as follows: 1) revise community concepts which will be marketable, within the new green economy; 2) appropriate consideration to
neighborhood traffic concerns which were voiced in the 1987 plan and in their survey; survey; 3) smart growth; 4) environmental stewardship; 5) increase project quality; 6) park space,
open space, and pedestrian activity; and 7) a sound economic strategy. They postponed their previous application after they were made aware of the EDZD in late July, 2009. They felt
the EDZD ordinance was a great fit for their project, in balancing green components with more progressive site design. They feel they comply with six requirements, including: 1) infill
site; 2) proximity to water and wastewater; 3) no significant ecological communities on site; 4) no jurisdictional wetlands on site: 5) no floodplain on site; and 6) implement LID techniques.
Mr. Brown reviewed how the project accumulated twelve points as presented by Ms. Daughtridge and Mr. O’Keefe. Mr. Brown noted that at least 90% of the homes will meet energy star criteria
and they will be implementing a water efficient landscaping plan, and they are still going to consider building orientation even though they don’t need it to achieve those points to
achieve their density. Mr. Brown pointed out that they are only requesting 4.8 units of density per acre. The project will consist of 48 single storey townhomes and utilize pervious
paving and LID techniques. Mr. Brown stated they limited their density to 4.8 units per acre partly due to site design constraints, but largely because they didn’t want to adversely
affect the traffic above and beyond what was present under the previously approved site plan. He explained they are using a garden park concept for the project and have added a pocket
park that will connect to the multi-use path they are proposing to partially fund to Ogden Elementary School. Mr. Brown also reviewed the Traffic Impact Analysis conducted by Ramey-Kemp.
Diana Woolley, of 348 Friday Drive located off Middle Sound Loop Road, spoke in support of the project. She stated it is certainly a vast improvement over the recent use of the property,
which was an overgrown, weedy lot with rundown mobile homes. Ms. Woolley explained she feels this is a good example of the type of infill development that is the purpose of the Exceptional
Design Zoning District. This zoning district is applied site by site and approval of this development will not automatically allow dense infill around the entire loop. She is pleased
that the development will not be built to its highest potential density, asking for 6 units per acre instead of 8 units per acre, which would be allowed because of the two earned bonus
points. She stated concern about the potential impact on the traffic on Middle Sound Loop. She was heartened to learn that a licensed traffic engineer reported that the project would
only generate 2 more a.m. peak hour trips and 3 more p.m. peak hour trips than a development of R-15 density. Ms. Woolley stated she would like to express an opinion on the staff’s comment
on page three about the lack of interconnectivity on Middle Sound Loop. She didn’t feel it was appropriate or
16 fair to blame the developer for the lack of interconnectivity at this point on Middle Sound Loop Road. If there are no stub-out opportunities in the adjacent development, it is not
the fault of this developer and there are no other access points available short of spanning Pages Creek, which hopefully won’t ever be considered. A garden park and a monetary donation
to an off-site bike and pedestrian path along Middle Sound will be very nice contributions to the area as a whole. Ms. Woolley stated she strongly recommends that the New Hanover County
Planning Board approve this rezoning request based on consistency with the plan and other appropriate matters. Beau McCaffray, of 7512 Dunbar Road, spoke in opposition to the rezoning
request. He has some differences of opinion with some of the facts. He assured the board that the traffic has not been alleviated on Middle Sound Loop Road. He hasn’t noticed a significant
impact with the improvements at Market and Middle Sound Loop Road. There is still a police officer directing traffic at the elementary school every morning. The 1987 plan stated on page
37 that over ¾ of the survey respondents felt that density of residential development is a problem, with almost ½ identifying it as a major problem. This particular piece of property
was zoned R-20, which yielded 19 units; in 2006, it was re-zoned R-15, which yielded 25 units. R-10 zoning was being requested last summer, which would have yielded 33 units. Now, the
developer is requesting EDZD, which will yield 48 units. Mr. McCaffray feels this is a substantial increase in density. He explained he is not speaking against EDZD. He feels EDZD is
a great concept, is very creative, and does a lot of things we all want. He simply doesn’t feel this is the right place for this EDZD project. In the CAMA land use plan, this area is
designated as a watershed resource protection area. Mr. McCaffray stated that based on the CAMA land use plan, it is clear the watershed resource protection area isn’t appropriate for
EDZD. Kert Layton, an adjacent property owner, for this project, read some highlights from a letter from Meredith Everhart, who has lived in the area for 35 years. He commented that
when the request was originally brought out for 611 Middle Sound Loop Road, staff was prepared to make a recommendation for denial because increasing the density was determined not to
be in conformity with the future land use plan for the Ogden area. Mr. Layton stated he also supports EDZD, however, not in this location. He is also concerned because traffic bottlenecks
on Middle Sound Loop Road. Chris O’Keefe distributed copies of the letter from Ms. Everhart and an email from Robert Parr stating their opposition to the project based on concerns about
traffic and density, as well as how the employment criterion was met. Tom Johnson with Nexsen-Pruet, stated that he doesn’t believe anyone had any idea what sustainability and green
development was in 1987 and we’ve come an exceptionally long way since then. He believes it is the wave of the future. Mr. Johnson commended New Hanover County for implementing the EDZD
ordinance because it very much encourages this type of development. This area was a trailer park that is being redeveloped into a sustainable and green development with connectivity
for pedestrian and bike path use that is not there now. The applicant believes this is a positive approach for the area which will reduce traffic and provide good proximity to commercial
development. He highlighted the other positive aspects of the proposed development and noted that a lot of positive changes have taken place over the last twenty years.
17 Mr. Layton asked if the project would be an age-restricted development for senior adults as presented in the second public meeting for area residents. Mr. Brown stated that several
residents had expressed concern that it wouldn’t be appropriate and questioned the legality of an age-restricted neighborhood so no age restrictions will be placed on the project. Mr.
Layton commented that he had passed around a petition in opposition to the project which was signed by all 17 attendees at the public meeting. The consensus is that they would like to
see the project go forth for consideration under the current zoning with green development techniques. Beau McCaffray stated he has a contention with the points referring to the commercial
development on Market Street because he doesn’t feel it is pertinent to the project. He is also unsure how the bike path could be put in on property that isn’t owned by the applicant.
Richard Collier closed the public hearing. Sandra Spiers noted that even if we deduct the two points for jobs, the project still qualifies for EDZD. She asked about the traffic issue
and how it is calculated. Ms. Spiers also asked if there were any bike paths in the Middle Sound area yet, noting bike paths were included in the 1987 plan. Sue Hayes asked staff if
the board could deny the proposed EDZD request even though the applicant has enough points. Chris O’Keefe stated that the project is a rezoning request and can be denied by the board
regardless of the points earned by the applicant. Ms. Hayes asked how far the $15,000 donation would go toward constructing a bike path to the school. Mr. O’Keefe stated that based on
preliminary information, the $15,000 donation should fund the paving of the entire bike path from the project site to the traffic circle at the school. Those funds could also be used
to leverage grant funds to extend bike paths in the area. Mr. Collier stated that in his opinion, EDZD fits well in this area because of the environmental stewardship it offers. He commented
that he believes EDZD works well in a watershed protection area because it follows the LEED example very closely. Mr. Collier said he thinks the development could still be built in R-15
and agreed that the bike path does need to be built. Sue Hayes asked for an explanation of why going from 25 units to 48 units on the parcel does not generate more trips per the TIA
report. Jason Hamilton, a traffic engineer with Ramey-Kemp Associates, provided an explanation for the similarity of traffic counts for town homes and single family homes. Trip generation
is based
18 on industry standards. He stated that more trips are generated by single family homes because typically there are more residents per single family home that drive vehicles. Smaller
families with fewer cars generally reside in townhomes. Sandra Spiers made a motion to recommend approval of the Exceptional Design Zoning District rezoning request for Z-897. Melissa
Gott seconded the motion. The Planning Board voted 4-0 to recommend approval of the Exceptional Design Zoning District rezoning request for Z-897. Item 4: Text Amendment (A-385, 4/10)
– Request by Planning staff to add Section 50-4 to the County Zoning Ordinance allowing a Special Density Exception for abandoned utility lots. Jane Daughtridge explained the background
for the proposed text amendment to add a special exception to allow conversion of abandoned utility lots to buildable lots with specific criteria. There are some older subdivisions in
our area that required private utility systems in order to function when they were created as performance residential. Those subdivisions quite often included a parcel of land that was
utilized for a well system. The acreage of that well parcel was counted toward the overall density. That well site is no longer necessary due to public utilities. The question had arisen
about utilizing that parcel for additional development. The short answer was that density was already calculated on that utility lot, but as a practical matter, that parcel does exist.
Staff suggested that as long as there was a very limited amount of additional allowance associated with it, for example, only one dwelling unit allowed for an abandoned well site, it
wouldn’t offend the sense of overall density in the area like a rezoning would. The only other option in place now would be to request a higher zoning to develop an abandoned well site.
We currently don’t have special exceptions in our zoning ordinance. The proposed text amendment would allow a special density exception for pre-existing abandoned utility lots that met
the following criteria: 1. When a major residential subdivision was approved and the final plat was recorded prior to 7/7/02, AND 2. When one or more parcels on the recorded final plat
was designated for private well site(s), communal septic drain field(s) or other utility parcel necessary to serve the original subdivision and the acreage of the parcel was included
in calculating the allowable density for the subdivision, AND 3. When the parcel(s) meets the minimum requirements of this ordinance, AND 4. When the accommodation of those services
or utilities has been otherwise met by public providers since the subdivision was developed, THEN the former utility parcel(s) may be converted to building lot(s) within the subdivision,
if and only if: a) The density approved for the original subdivision may not be increased by special exception more than a total of 3 additional dwelling units in any eligible subdivision.
b) Utility parcels shown on the final subdivision plat during the period of eligibility may not be further divided for the purpose of adding dwelling units.
19 c) Public water and sewer services must be readily available to serve the entire subdivision. d) Each lot must front on a dedicated street right of way e) No part of any parcel considered
for special exception shall have been designated open space or recreational space for the approved subdivision which they served. f) Development of any lot subject to this exception
must be of a character consistent with the scale and design of pre-existing development in the neighborhood. g) All lots are subject to conservation resources regulations and may be
ineligible for this special exception based upon inability to meet those standards. Richard Collier asked for clarification of 50.4-2 4d requiring the lot be on a dedicated street front
right-of-way. He commented that some of the well lots may have been offset and tucked back in with an easement. Jane Daughtridge explained that the lot must be on a dedicated street
front right-of-way or have a street brought to it to be eligible. Melissa Gott asked how the minimum acreage size would be determined for a lot. Ms. Daughtridge explained minimum acreage
size is based on the minimum size for the district, for example, a lot in an R-15 division would need to be 15,000 square feet to be eligible. Sue Hayes made a motion to recommend approval
of Text Amendment A-385. Melissa Gott seconded the motion.
The Planning Board voted 4-0 to recommend approval of Text Amendment A-385. Item 5: Text Amendment (A-386, 4/10) – Request by Planning staff to add Section 72-40 to the County Zoning
Ordinance to define and specify standards for electronic gaming operation and add to the table of permitted uses electronic gaming operations permitted by right in B-2 and I-1 districts
when the standards are met. Chris O’Keefe presented the background information on the proposed text amendment. The County has implemented a moratorium on the development and expansion
of these internet gaming establishments. Their use has been growing in the County. Staff is aware of nine businesses in the area, but we have not been able to count the machines that
are in restaurants or bars or other places where a permit is not required. He presented a map showing the businesses are generally located in commercial districts. The red symbol represents
existing and the green symbols are the businesses that have applied for permits. Those permits have not been issued due to the moratorium. Mr. O’Keefe showed photos of various electronic
gaming facilities in the county. The facilities also tend to locate near adult activities. These businesses are cropping up throughout the state. He noted the issues associated with
the cyber-sweepstakes that may impact public health, safety or welfare are: incompatibility with surrounding land uses, blight, litter, traffic and parking, property values, gambling
addiction, crime and the proliferation of these uses in districts.
20 Mr. O’Keefe briefly reviewed the proposed text amendment, which addresses the following impacts. 1) Definition of Use: (Added a new definition) a) Electronic Gaming Operation: A business
enterprise, whether principal or accessory, where persons utilize electronic machines, including but not limited to computers and gaming terminals, to conduct games of odds or chance,
including sweepstakes, and where cash, merchandise, or other items of value are redeemed or otherwise distributed, whether or not the value of such distribution is determined by electronic
games played or by predetermined odds. Electronic Gaming Operations do not include any lottery approved by the State of North Carolina. 2) Table of Permitted Uses (Added to Table of
Uses) a) Electronic Gaming Operations permitted as a special use in B-2 & I-1 districts 3) Operations Standards (Added a new section) 4) Location and Size Standards 5) Design Standards
Mr. O’Keefe stated that the maximum number of machines/terminals/computers for any electronic gaming operation business is 20. The County’s intent is to discourage stand-alone gaming
establishments. Melissa Gott asked why # 6 states the maximum daily cash payout shall not exceed $600. Mr. O’Keefe explained the cash payout limit was determined because they don’t want
a lot of cash on the premises, which would make the businesses a target for crime. That amount is being used by a number of cities and towns. Ms. Gott noticed that #9 states the “Electronic
gaming operations shall be located a minimum distance of 1,000 feet, measured in a straight line in any direction from closest point of the building and parking lot of the proposed business
to the property line of an adult entertainment establishment. Ms. Gott asked for a clarification of what zones allow adult entertainment establishments. She asked if it is allowed in
B-2 and I-1. She commented that she agrees with the other location restrictions because they don’t want these establishments next to a library or church. Ms. Gott wondered if we were
trying to force all of the negative type of establishments into one area. Mr. O’Keefe stated that both adult entertainment establishments and the electronic gaming establishments are
allowed in I-1 by special use permit. Adult entertainment establishments are only allowed in I-1. Ms. Gott asked if there was a reason staff is suggesting these electronic gaming operations
also be allowed in B-2.
21 Mr. O’Keefe stated staff hasn’t suggested that we should be more rigid at this time with the location of the electronic gaming establishments. Some uses currently exist in commercial
districts so if they can meet the other requirements, perhaps they should be allowed because the impacts are not as many as with the adult entertainment establishments. Ms. Gott stated
it didn’t seem logical that you could have a hotel and an electronic gaming establishment in a B-2. Ms. Gott asked if staff was asking the board to be more restrictive on the number
of machines. Mr. O’Keefe stated that the current number of machines proposed is twenty, which would make it more difficult to operate a stand-alone establishment. That number may be
decreased. Sandra Spiers asked how this amendment would impact existing electronic gaming establishments. Mr. O’Keefe stated it would not impact existing businesses, which can remain
open. It would impact new businesses and expansions. Sue Hayes asked if a public hearing is required for for this item. Mr. O’Keefe stated the board could ask for public comment if desired.
The County Commissioners will hold a formal public hearing on the item. Richard Collier opened the floor for public comments for or against Text Amendment A-386. No one spoke for or
against text amendment A-386. Mr. Collier closed the public comments session. Sue Hayes made a motion to recommend approval of Text Amendment A-386 as presented. Sandra Spiers seconded
the motion. The Planning Board voted 4-0 to recommend approval of Text Amendment A-386 as presented. Mr. Collier asked again if a representative was present for S-409M – Autumn Corporation.
Finding no one present, Mr. Collier stated that Item #1: Special Use Permit S-409M for Autumn Corporation at Myrtle Grove will be continued to the May 6, 2010 planning board meeting.
Technical Review Committee Report (March) Sam Burgess presented the TRC report for the month of March. He stated the Technical Review Committee (TRC) met once during the month of March
and reviewed reviewed one revised preliminary performance project.
22 Coral Ridge: The Coral Ridge subdivision is classified as Transition on the County’s Land Use Plan. The project is located near the 7100 block of Carolina Beach Road, West side. The
project is adjacent to the South by Carolina Inlet Acres subdivision. The Coral Ridge site plan was preliminarily approved by TRC in February, 2008 for a total of 97 units. In September,
2008, the TRC approved the conversion of the road network from public to private. Water and sewer services are also private. The developer for Coral Ridge requested TRC to preliminarily
approve a decrease in the pavement width from 35’ to 27’ on a portion of Bonaire Road and relocate three units and a clubhouse from the back portion of the project to near the front.
The TRC voted 5-0 to approve the revised preliminary site plan to Coral Ridge with conditions. The full report was provided in the planning board packet. Mr. Burgess reported that the
next meeting of the TRC will be held on Wednesday, May 12, 2010. Richard Collier adjourned the meeting at 8:30 p.m. ______________________________________ Chris O’Keefe, Planning & Inspections
Director