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05-2010 May 6 2010 PBM 1 Minutes of the New Hanover County Planning Board May 6, 2010 The New Hanover County Planning Board met Thursday, May 6, 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: Jay Williams, Chair Chris O’Keefe, Planning & Inspections Director Richard Collier, Vice-Chair Jane Daughtridge, Planning & Zoning Manager Melissa Gott Shawn Ralston, Senior Environmental Planner Sue Hayes Sharon Huffman, Assistant County Attorney Andy Heath Karyn Crichton, Planner Ken Wrangell Nicole Dreibelbis, Planner Planning Board Absent: Sandra Spiers Jay Williams opened the meeting by welcoming the audience to the public hearing. Chris O’Keefe led the reciting of the Pledge of Allegiance. Sue Hayes made a motion to approve the April Planning Board meeting minutes. Richard Collier seconded the motion. The Planning Board voted 6-0 to approve the minutes. Jay Williams stated that a request was received this afternoon from the petitioner regarding a motion to continue Item # 3: Z-903 to rezone 11.41 acres at 799 Rivage Promenade from R-10 and R-15 Residential District to B-2 Business District. The board has decided to entertain the motion to continue that item first on the agenda and then proceed with the regular agenda in order. Mr. Williams asked the attorneys for the petitioner and the Beau Rivage Homeowners Association to provide two-minute presentations in support of or against the motion. Ken Shanklin, of Shanklin & Nichols, representing the applicant Isabella Holding Company, LLC, stated they filed a motion to continue their rezoning request for six months to see where they are. He explained that the County Commissioners rezoned a conditional use district and approved a special use permit for the Beau Rivage Clubhouse on Monday night, which his clients opposed and in light of that decision, they have filed this request in conjunction with that application. He noted his clients would like to reevaluate where they are and where they are going, explaining they may completely withdraw the rezoning request, substitute another rezoning request for a conditional use district, or come back with performance residential subdivision requirements. Mr. Shanklin stated they are unsure at this time so instead of wasting the time of the board and their neighbors, they are requesting a continuance in the form of a table for at least six months. He noted they haven’t yet made the decision about whether to appeal the 2 Commissioners’ decision on Monday night so before they go forward with this request, they’d like the opportunity to see where they are. Scott Holmes, of Murchison, Taylor & Gibson, spoke on behalf of the Beau Rivage Homeowners Association. Mr. Holmes stated he didn’t know why the continuance request was made approximately two hours prior to the meeting, but obviously the homeowners have a large contingent present at the meeting. He commented that it is a large inconvenience for them to come to the meeting only to find out the item may be postponed. Mr. Holmes stated that if they need six months, he would at least submit respectfully that perhaps they need to withdraw the application. He noted their application referenced that they were well aware of the meeting on Monday so he wasn’t sure what had changed. Mr. Williams closed the public hearing. Sue Hayes expressed concern that the motion to continue the item was filed two hours prior to the meeting and asked for the advice of the county attorney. Ms. Huffman stated the board’s options were to approve or deny the request for a continuance, noting they have asked for a specific setting by requesting the item be tabled for six months. She explained if the item was continued to a date certain, the people in attendance would know what the date certain would be. Ms. Huffman stated if the motion to continue had been received prior to the public notice being published in the newspaper, the continuance would have been automatic. Now, the rules provide that after the publishing, if the motion to continue is granted, the applicant will be charged with the costs incurred by the county to republish the item. Ms. Huffman stated she couldn’t provide a legal opinion on whether the board should approve or deny the petitioner’s request. Ms. Hayes reiterated her concern that so many people were in attendance to hear the item, noting the applicant waited so late to request a continuance and didn’t provide a very good reason for waiting that long. Ms. Gott asked Mr. Shanklin what changed from Monday night to Thursday afternoon that would cause him to file a motion to continue. Mr. Shanklin stated they were reevaluating what happened on Monday night, explaining he was tied up on Tuesday and Wednesday and was in federal court mediation all day that day, which had been going on for three weeks. He noted he hadn’t had a chance to meet with his clients to determine what their rights were regarding Monday night’s decision and tonight’s request and what their options were going forward. Mr. Shanklin said they may not request B-2, but instead may come back with a performance residential that wouldn’t require a rezoning, but would require only a site plan. Ms. Gott stated the applicant filed the application for a B-2 rezoning a month ago and she didn’t understand how the decision approving someone else’s rezoning on Monday night impacted their application. 3 Mr. Shanklin explained that it impacted their application from the standpoint that they may require a conditional use district B-2, instead of a straightforward B-2. The applicant was just trying to see where they were in the overall equation. Ms. Gott asked if they considered, based upon the planning board’s recommendation over a month ago, that the Conditional B-2 for the clubhouse being approved might impact their application. Mr. Shanklin stated it might or might not impact their application, explaining there were a number of issues he raised Monday night at the hearing that frankly concerned him under the County’s ordinances, noting Ms. Gott’s presence at that meeting. Mr. Shanklin said he hadn’t been fully involved in this issue until last week. He indicated that Matt Nichols had been handling the case. Mr. Shanklin commented that he is still researching the legal issues and ramifications to the performance residential development of the conditional use district from Monday night’s meeting. He stated the federal court mediation he is currently involved in had been going on for four years and he had to leave court early to attend tonight’s meeting. Mr. Shanklin apologized for not requesting the continuance on Tuesday, explaining he just didn’t have time to get to it. Ms. Gott said her concern was that she views these as two separate issues and stated she would decide on the current application should the board hear it tonight separately and apart from the decision she made last month. She commented these are two totally different applications that don’t have any bearing on each other in her opinion. Mr. Heath stated the applicant should either withdraw the item or the board should hear the request, noting a one month continuance might be acceptable, but not six months. He agreed with Ms. Gott and didn’t understand what had changed since Monday night’s commissioners meeting. Jay Williams asked for clarification from staff on the ramifications of a withdrawal of the petition and a denial of the rezoning request. Ms. Daughtridge explained that if the petition is withdrawn or the rezoning request is denied, the applicant will not be able to bring forth another request for the parcel for twelve months. Mr. Collier asked if the applicant would be able to bring back a Conditional Use B-2 in three months or six months and asked if the twelve month rule applied only to a straight rezoning. Ms. Daughtridge stated the County would typically not allow a transition from a straight rezoning to a conditional because the process is totally different. Conditional districts are not for tentative projects, but are for “bird in the hand” projects. Mr. Collier explained his question was if the applicant could come back within a year if they modified their proposal from a straight rezoning, even if it went to I-2. He asked if it was accurate that the applicant just couldn’t come back with the same proposal within twelve months. 4 Ms. Daughtridge stated the applicant can’t come back with a proposal on any part of the property for twelve months if it is withdrawn or denied. Mr. Williams asked for further comment or motion by the board. Sue Hayes made a motion to deny the continuation of Item #3: Z-903. Andy Heath seconded the motion. The Planning Board voted 5-1 to deny the continuance request. Ken Wrangell voted against the motion. 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. Williams stated this matter was continued from the April 1, 2010 Planning Board meeting. Jane Daughtridge showed maps and photographs of the property and of the surrounding area. Ms. Daughtridge provided information pertaining to land classification, access, level of service, zoning, and flood zones. Ms. Daughtridge stated the level of service map for traffic shows that segment of Carolina Beach Road is F, actually FF, which means it exceeds 1-1/4 times the capacity of the roadway. The zoning map shows a number of different zonings in the vicinity. This parcel is zoned R-15, but there is B-2 highway commercial there and some conditional commercial districts in the area. The property is just north of the Sanders Road intersection. The aerial photo shows the existing nursing facility against the Carolina Beach Road portion of the property and a great deal of undeveloped property on the back side. She showed an oblique view of the parcel and indicated which building wing would be expanded. One of the photos showed the deceleration lane entering the facility that helps mitigate those impacts. The parking lot and existing stormwater facility will be relocated to different areas of the property. Ms. Daughtridge also reviewed the proposed site plan. Chris O’Keefe provided the following staff summary and preliminary findings of fact: Staff Summary The Autumn Corporation originally requested a special use permit in 1997 to construct a 110 bed nursing and personal care facility. The facility is now proposing to expand the facility by 17,400 square feet. The expansion represents the conversion of 14 semi-private rooms to private, the addition of a physical therapy room, and 47 new parking spaces. This item was continued from the April 1, 2010 Planning Board meeting. PRELIMINARY 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. 5 A. The subject property is located in the Myrtle Grove Fire District. B. Existing water and sewer services are currently available to the site from the Cape Fear Public Utility Authority. C. Water and sewer expansion capacity is currently pending approval. D. The property is accessed from Carolina Beach Road, a rural principal arterial. E. Level of Service (2007) on Carolina Beach Road, north of Sanders Road is rated FF meaning traffic counts exceed the capacity of the roadway by a multiplier of 2 or more. F. A traffic impact analysis was not required because the expansion will not generate 100 peak hour trips. G. The property is not located in a flood hazard area. H. The existing stormwater management wet pond will be relocated and converted into a stormwater wetland as part of this proposal and is currently under review with County Engineering. Staff finds the evidence in the record at this time supports a finding that the expansion will not materially endanger the public health or safety where proposed. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. Nursing home facilities are permitted by special use permit in R-15 zoning districts and subject to Section 72-9 of the zoning ordinance. B. The existing parking lot has 78 standard parking spaces. An additional 47 parking spaces are proposed for a total of 125 parking spaces, which are 72 more spaces than required. C. The 2006 Land Classification Plan classifies the area as transition, which allows for future intensive urban development on lands that have been or will be provided with necessary urban services. D. No additional lighting is proposed. E. No additional commercial signage is proposed. F. The proposed 17,400 square foot addition satisfies both building setbacks and buffer requirements. G. All other local, state and federal requirements must be met, including possible property upgrades to meet building codes and fire safety codes. Staff finds the 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 the adjoining or abutting property or that the use is public necessity. A. No evidence has been submitted that this project will decrease property values of residents who live nearby. B. An expansion of the existing nursing home facility in most cases would not injure the value of adjoining property. 6 Staff suggests the evidence in the record at this time supports findings 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. A. The 2006 Land Use Plan Update identifies this area as Transition. The Transition classification provides for future intensive urban development on lands that have been or will be provided with necessary urban services. B. The existing facility has been harmonious with the surrounding area. Staff finds the evidence in the record at this time supports findings that the use has been and will continue to be in harmony with the area in which it is located. Jay Williams opened the public hearing. Don Curry, of the Curry Engineering Group, spoke on behalf of the applicant noting he had nothing of substance to add to the Planning staff’s very thorough presentation. Mr. Curry reiterated the company’s desire to stay in New Hanover County and improve their facility. He stated Autumn Corporation enjoys a good reputation in this area and across the southeast and pledged their continued commitment to the health and welfare of their residents. No one spoke in opposition to the special use permit. Jay Williams closed the public hearing. Sue Hayes commented that Carolina Beach Road is rated FF, well over capacity in that area, but this request doesn’t appear to significantly change that. She noted it will increase traffic by 7 trips at the a.m. peak and 10 trips at the p.m. peak. Andy Heath asked the applicant to clarify why forty additional parking spaces are being required if the project will only generate seven more trips per day. Don Curry explained their experience has shown that with nursing home facilities, a typical ratio is at least one parking space per bed. Their company generally tries to provide a few more parking spaces than that. He stated this facility is about ten or eleven years old and has far fewer parking spaces than they typically provide now. The facility can be very crowded on a weekday and on weekends it is very difficult to find a parking space so they are trying to bring the facility up to the current standard by increasing the number of parking spaces. Mr. Curry also stated that because this is a conversion of rooms from semi-private to private, which is also the reason for the square footage increase, they don’t anticipate an increase in trips as the number of beds will remain the same. 7 Richard Collier made a motion to recommend approval of Special Use Permit Modification S-409M for Autumn Corporation due to all findings of fact being positive. Sue Hayes seconded the motion. The Planning Board voted 6-0 to approve Special Use Permit Modification S-409M. Item 2: Special Use Permit (S-601, 5/10) – Request by Carlos Lagomarsino for a special use permit to establish non-residential off-street parking in a R-15 residential zoning district located at 4813 Carolina Beach Road. The site is classified as Urban 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 zones. She stated the traffic level of service on the roadway in this segment is E, meaning at capacity, and transitions as it gets closer to town. She noted the area is a mixture of zoning, pointing out this parcel is zoned R-15, as is the neighboring property to the northwest. The adjoining property is in the city limits and voluntarily annexed in a few months ago. This piece of property, as well as its surrounding, is in the anticipated annexation area as well and is under the annexation ordinance for the City of Wilmington. She presented an aerial of the property, explaining that the Esplanade shopping center is located to the south of this property. The Treetops condo complex is north of this property. The Home Insurance Company is located in the end unit of the Esplanade office center as shown in the photograph. Ms. Daughtridge stated there is a deceleration lane along Carolina Beach Road, which continues on into the Treetops high density residential development. She pointed out the area in question, which is an existing improved driveway. Ms. Daughtridge stated the current parking shown in the photo is a violation of the zoning ordinance because the area is zoned R-15. She explained the applicant’s business has been very successful so he has hired a lot of employees that are parking in all of the parking spaces of the business center and overflowing into this area. Part of this proposal is to try to remedy the current violation. There is an existing drainage pond on the property as reflected in the photo that handles stormwater from Esplanade office center and the roadway. Ms. Daughtridge provided an aerial of the Esplanade office center. Because this property is located in the annexation area for the City of Wilmington, we sent this request forward to the City for their comments prior to bringing the request to the Planning Board. Ms. Daughtridge stated board members have a copy of the e-mailed comments received from the City at their desks and noted the e-mail was forwarded to the applicant as well. Chris O’Keefe presented the following staff summary and preliminary 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. Staff finds the evidence in the record at this time supports a finding that the expansion will not materially endanger the public health or safety where proposed when violations have been properly remedied. 8 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. F. The proposed project is located within the City of Wilmington’s annexation area, effective June 10, 2010. Therefore, a copy of the site plan was submitted to Ron Satterfield, Development Services Manager. Copies of their comments have been distributed to the petitioner and the Planning Board. Staff finds the evidence in the record at this time supports a finding that the use will meet all required conditions and specifications of the Zoning Ordinance; however staff suggests the petitioner should address the questions raised by the City staff. 3. The Board must find that the use will not substantially injure the value of the adjoining or abutting property or that the use is public necessity. A. No evidence has been submitted that this project will decrease property values of residents who live nearby. Staff finds the evidence in the record at this time supports findings 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. A. The 2006 Land Use Plan Update identifies this area as Urban. The Urban classification provides for continued intensive development and redevelopment of existing urban areas. B. Buffering will be required to mitigate impacts on adjacent residential district. Staff finds the evidence in the record at this time supports findings that the use will be in harmony with the area in which it is located, when proper buffers are installed. Ken Wrangell asked staff for a clarification of the designation of “R/W” and asked if it referred to right-of-way, noting the letter from the city states that the Tax Office identified the property as “R/W”. Jane Daughtridge confirmed that “R/W” designates designates a right-of-way. Jay Williams opened the public hearing. Cindee Wolf, with Withers and Ravenel, spoke on behalf of the applicant, Carlos Lagomarsino and the owners of The Esplanade. She said as Ms. Daughtridge pointed out, Home Insurance is a web-based company that has thrived; therefore, the offices and associated call center that are located at 4829 Carolina Beach Road are a very labor intensive type of company. The business 9 has been operating for three years. The company currently employees approximately 120 people and has expansion plans to increase to 160 employees over the next couple of months to a year. This type of enterprise generates the need for vehicle parking well beyond the normal parking requirements that the county would have for general office space and thus, the overflow parking has occurred. The employees are there, they have to park somewhere and that land was vacant and was owned by the owner of the Home Insurance Company. Unfortunately, it was an error because it is a violation of the County’s ordinance for the zoning that it underlays. Policies for growth and development certainly encourage efforts to retain businesses and a business with all these employees is not something we want to discourage. The additional parking is necessary for the business to remain viable in this location. Obviously some people would point out they could move the business to a different location, but we believe that its location along Carolina Beach Road makes this a reasonable request. Carolina Beach Road does have a high service level, but at this juncture those employees are already there so we aren’t adding any additional trips by virtue of the current request. With those additional forty workers, there will be some increase, but generally based upon vacations and sick leave, there is still a deficit of approximately twenty employees that are never there on any given day. Ms. Wolf stated she doesn’t believe there will be any impact on Carolina Beach Road created by this proposal. The property is in an Urban land classification so it is in alignment with this type of proposal. In regard to the City’s comments about the project, the applicant opted to go forward with the request based upon the gray areas surrounding the pending annexation and its anticipated effective date of June 1st. Ms. Wolf explained the parcel was created years ago by the land owner and sold fee simple to Mr. Lagomarsino, but in the text of the deed it refers to it being a “right-of-way”. She said she believes the terminology was being used interchangeably with “access easement” because the entire bulk of the tract is only 60’ wide. Ms. Wolf wasn’t sure how it could have been created, but it was probably created prior to the subdivision regulations that require an R-15 lot to be 80’ wide. She reiterated the lot is only 60’ wide and appears to be a right-of-way. Years ago, there was hope it could perhaps have been turned into a street and been dedicated as part of a performance residential development; however, by virtue of the tract called Hayleigh Village that was recently voluntarily annexed into the City of Wilmington and has an overlaying conditional district, there is no place for this right-of-way to go any longer. Ms. Wolf stated that the property is fee simple and there is no dedication of it so she doesn’t believe they are impacting any type of regulation of parking in a dedicated right-of-way and in reference to the access easement, her clients are not taking away any access to any properties that have an interest in it. She noted the fact that the drive is right up the center would provide access if it was ever needed to be used as access by the property owners at the end of it. Ms. Wolf commented that the site plan currently in place for that property doesn’t provide for that access, although it could still be used for that purpose. She stated the City referenced an odd technical standard that would be the only one she could identify as different between the City and the County, in which the City requires technical variances from the subdivision review board if any portion of a parking area is more than 500’ from a through street. Obviously, this is a very long parking area but Ms. Wolf feels that if it were in the City, the fact that they have provided a turnaround for emergency vehicles at the end of it would satisfy the justification for the variance from the City’s board. Either way, the County doesn’t have a requirement. The project would also meet the fire and life safety requirements for both the City’s and County’s regulations. 10 Ms. Wolf stated the City commented on the aerial from 2006 which shows some trees, but following the construction of the Esplanade and the stormwater pond in the back, there are no trees within the development area they are proposing. There are also no wetlands within the development area. Ms. Wolf explained there had been a wetland delineation and there are still some wetlands at the rear of the Martin Development project, but everything that had been wet years ago has dried up or is isolated. She stated that the area at the end that she is showing as possible wetlands may or may not actually be identified as wetlands, but we are not impacting the wetlands as verbally committed. Before we pull any type of construction authorization, we will have written documentation from the Corps of Engineers. Ms. Wolf stated both the City and the County promote porous surfaces and noted all the additional surfaces not already paved are intended to be porous. She commented that information is identified on the site plan so it’s a condition they are willing to abide by. Ms. Wolf noted they have provided the screening and buffering to the adjacent Treetops development and overall, they believe they’ve done their best to incorporate the landscape islands and fencing and feel this will be an improvement over the existing situation of cars parking on the dirt bordering the existing pavement. Ms. Wolf stated this will be an improvement to the overall aesthetics of the area and will also benefit the company. She informed the board that Mr. Lagomarsino was also present at the meeting. Richard Collier stated the amount of parking seems to be well in excess of what he has seen with the current employees parking there even with the forty additional employees that may or may not be coming on board reasonably soon. Mr. Collier asked why the applicant is requesting so many parking spaces. Cindee Wolf explained that part of the issue is that many employees now park within the Esplanade and that has gained the wrath of the other condo business owners. Parking is not assigned there, but it is allotted and the Home Insurance employees are taking more than their share of the parking spaces. Ms. Wolf has basically provided one space per employee at work on the proposed site plan, which will provide a total of 120 parking spaces. The applicant also has some parking allotment within the Esplanade development. No one from the public spoke in opposition to the special use permit. Jay Williams closed the public hearing. Melissa Gott asked if the deed specified a width for the right-of-way. She said the plat map actually shows the right-of-way being 60’ wide. Cindee Wolf stated that was correct. The deed refers to a 60’ parcel of land subject to a right-of-way for egress and ingress previously conveyed on and over said tract, but doesn’t specifically say what the right-of-way for egress and ingress is. Ms. Wolf stated the 24’ wide drive aisle up the middle of the proposed parking lot is certainly adequate for any access that would be necessary. Melissa Gott asked who holds the rights to this access. 11 Ms. Wolf stated South College Associates holds the rights to the access. She explained they are also clients of hers from previous ventures and they have discussed this issue. She reported that South College Associates have no issues with the reduction of their access from 60’ to 24’ because they don’t have a need for it anymore. The Hayleigh Village Plan that has been approved by the City as part of their conditional district rezoning shows a parking lot at the end that is not connected to this strip of land. There is a building ahead of it with parking off to the side. As an alternative to this being an access to their parcel, other streets were created. One of those streets is through Belle Meade Center, which will be the extension of Pine View Drive to Sykes Drive. We were also required to stub a public street to the top of Winding Branches Way. The Winding Branches folks and Treetops have a private street and they have indicated that they will not request dedication of that street, but we have created the connectivity that the City required. Melissa Gott asked the County Attorney Sharon Huffman if the Planning Board needs the owner of the rights to the easement to sign an easement deeding the easement back over to Home Insurance Company. Cindee Wolf stated no, Mr. Lagomarsino owns the land fee simple. It is encumbered by an easement and they would have civil suit if they wanted to do something on that easement that they couldn’t presently do, but it doesn’t encumber him from developing it. Sharon Huffman stated there is not a need to have the owner sign a deed for the right-of-way to anyone. Not to question Ms. Wolf’s statement, but there is an issue if there’s ever a chance that this was to be a dedicated street. You can’t have parking in the street. Ms. Huffman stated she also has an issue with the fact that this property is, as we speak, to go into the City according to staff’s write-up next month. She said though the Cindy has stated that it is in compliance with the City’s standards, this e-mail that was received from the City Planner yesterday afternoon. The e-mail sent by Angela Faison on the afternoon of May 5th states on page three that there are a number of issues with technical standards. It states, “It appears access is not in compliance with the City’s technical standards”. Ms. Huffman stated that with those two issues, she suggests the Planning Board consider a directive to staff that nobody be bothering someone about the violations that are taking place, but to: 1) consider putting the burden on Ms. Wolf to obtain an affidavit or letter from the owner of the right-of-way owner stating they are never planning to ask for this street way to be dedicated; and 2) to invite a City representative to attend the meeting when this item comes back for a final decision. This e-mail was copied to Anthony Prinz. Ms. Huffman stated she is unsure if Mr. Prinz has seen the e-mail or if anyone from the County has heard from him. Ms. Wolf stated that the property is currently in the County and has been submitted to the County standards. She noted there are standards in the City that can be addressed by the applicant, but she doesn’t feel the County should ask the applicant to wait. Ms. Wolf stated that as far as the access easement, the applicant is not building a building in the easement so he isn’t denying access, but she can discuss with South College Associates some rewording of the access they have if the board feels that is necessary. 12 Melissa Gott stated that is the only concern she has is the possibility that Ms. Wolf’s previous clients might decide to exercise their right to make their access a street, noting that because the property is currently zoned in the County, she is comfortable passing the item under the County’s standards. Ms. Wolf stated she looked at different scenarios because she originally thought this property might be in the City before they got to this point. They actually looked at the site actually being a city street with on-street parking because there is the possibility of on-street parking in some cross-sections of the City, but whether it’s a street or not, it wouldn’t be a 60’ wide street so putting this parking in now isn’t precluding that property owner’s rights to turn it into a street. She noted that if he did, she is sure Mr. Lagomarsino would have to move his business if he didn’t have the 120 parking spaces. If South College Associates decided in 2030, they still have the ability to have that access so she’s not sure they would want to give up their ability for future access, but whether they would reduce the width of it could be investigated. Ms. Wolf reiterated that the access is still the access as long as a building is not constructed there and the deed doesn’t say that it has to be a specific width, but only that they have access over a 60’ strip of land. Mr. Williams read from the deed, “more or less the same being a 60.01 foot right-of-way over the northernmost portion of said Downing tract subject however to a right-of-way for ingress/egress previously conveyed on and over said tract”. Mr. Williams commented that what bothers him is not whether or not it could be dedicated as a street as has been discussed, but since it is an access easement for the property owner at the rear, a good faith argument could be made that it is a 60’ wide access easement, not necessarily a right-of-way. Ms. Wolf agreed with Mr. Williams that a good faith argument could be made that it is a 60’ wide access easement and not necessarily a right-of-way. Mr. Williams stated that if the Planning Board votes to approve this measure, we are putting Mr. Lagomarsino in a position where we’ve approved something that he’s going to no doubt spend a lot of money on by putting down asphalt and parking which may later turn out to be a 60’ wide easement. Ms. Wolf stated she acknowledges that the property is a 60’ wide easement, and maybe the easement owner would want the right side of the easement instead of the left side; but that wouldn’t prevent the Planning Board from approving a parking lot on the property. Ms. Wolf stated they could certainly consider having a written statement from the easement owner available prior to the Commissioners meeting. Mr. Williams noted that was a good suggestion. Andy Heath added that if that is an issue with the board, it could be cleared up by dedicating an easement in the travel way on a plat that would solidify exactly where the easement is located. Cross access easements in parking lots are common for different outparcels. 13 Jay Williams said his point was there wouldn’t be room for the easement. He explained if it’s a 60’ wide easement on a 60’ wide tract, they would be shrinking the access way down to something less than 60’; thereby, affecting the property owner to the rear whether or not they agree to it. Mr. Williams stated he likes the suggestion that the petitioner address that issue before they take it to the commissioners, noting he doesn’t have a problem with the proposal. Richard Collier commented the parking lot itself is fine and like Ms. Gott, he is fine with it meeting County standards and going into the City. Mr. Collier would like the access easement issue cleared up, noting that 60’ tends to be a street type right-of-way so it seems to be intended for that purpose; however, if the applicant can get the easement owner to agree to an access easement that is the width shown on the plan, he believes it will be okay to pass it. Mr. Collier stated that would give them the egress and ingress they requested. Mr. Williams also noted they may never use it because they have other plans as was pointed out by Ms. Wolf. Mr. Williams asked Ms. Daughtridge and Mr. O’Keefe to assist with the wording of a motion with the condition. Ms. Daughtridge stated it is a special use permit so a condition can certainly be attached to it. She noted that if the applicant can’t meet that condition prior to the commissioners meeting, they can request a continuance until they can meet it. Mr. Williams asked if the motion could simply state, “the applicant is asked to show evidence of the consent of the owner at the rear of the property”. Mr. O’Keefe stated he would specify “before the commissioners meeting” as well because if the annexation does go forward, the County tends to lose their conditions when the City takes over. He believes it is important the petitioner understands what the County is requiring and that it’s a good motion to allow them to move to the next meeting and also give the Commissioners notice that they should be receiving receiving some proof that the right-of-way issue has been resolved. Mr. Williams commented that of course the Planning Board’s motion is advisory only so the Commissioners can move forward as they please with the item. Melissa Gott made a motion to recommend approval of Special Use Permit S-601 subject to the following condition: Proof and/or consent of the rear property owner known as South College Associates regarding the access easement provided prior to the Commissioners meeting in June. Mr. O’Keefe asked if the County should request something more binding or definitive from the petitioner so that, if the property was sold and the intent of the new property owner was to change that agreement, an actual recorded deed would be in place reflecting the condition. Sharon Huffman expressed concern about the broadness of received documentation of consent, noting she found it difficult to believe that South College Associates would sign documentation stating they consent to giving up any rights they have to the the easement. She stated if we are 14 trying to accomplish something that allows the owner to retain some right but still provide for parking, it needs to be more specific than a letter of consent. Sue Hayes asked if Ms. Huffman had a suggestion for the documentation. Ms. Huffman stated that Ms. Wolf can obtain whatever documentation she wishes. Mr. Williams commented that may be his point, it still goes to the Commissioners and they can get whatever evidence they think the Commissioners might deem appropriate. He stated that he’d be hesitant to say the petitioner needs to obtain a deed of release for that easement. Mr. Williams said he believes that would be onerous. Ms. Huffman stated she couldn’t imagine they would be able to get a deed of release for the easement, although maybe they could obtain a letter stating they consent to and agree to give up any rights they may have to the access easement. Mr. Williams stated that it’s a little hard to define what the access easement owner would retain, noting he was looking for something that would state this parking lot was okay with them and prevent them from later denying that they consented to it. Ms. Huffman again expressed concern that a statement from the access easement owner consenting to the special use doesn’t accomplish much. Ms. Daughtridge asked if the deed could be modified to reflect a 24’ easement or if College Road Associates could provide a legally binding document to alter the easement to 24’. Mr. Williams stated that could certainly be done, but he doesn’t want to require that. He believes Ms. Wolf will present some documentation to the Commissioners that will acceptable to them. He noted he didn’t want to require a particular instrument, but would rather leave Ms. Wolf the flexibility to work out the issue with her two clients. Mr. O’Keefe said Mr. Williams had convinced staff. Ms. Gott stated that as a real estate closing attorney she would want a document that specifies a 24’ easement platted out and attached to the deed, but Mr. Williams doesn’t want to be that strict on the petitioner. Ms. Huffman stated that she wanted Ms. Wolf to be on notice that if she provides a piece of paper that says “we consent to” as the only document available for the Commissioners meeting and staff is asked, she is certain there will be issues with that documentation. Andy Heath seconded the motion as presented by Melissa Gott. The Planning Board voted 6-0 to approve Special Use Permit S-601 with the condition that proof and/or consent of the rear property owner known as South College Associates regarding the access easement be provided prior to the Commissioners meeting in June. 15 Item 3: Rezoning Request (Z-903, 5/10) – Request by Isabella Holding Company to rezone 11.41 acres at 799 Rivage Promenade from R-10 and R-15 Residential District to B-2. 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 provided information pertaining to land classification, access, level of service, zoning, and flood hazard areas. Ms. Daughtridge reported the level of service on Carolina Beach Road at the site is E, meaning at capacity, and transitions to C at the signalized intersection of Cathay Road. The surrounding area is a variety of zoning, primarily residential R-15 and R-10. Along the roadway is a combination of B-1, B-2 and Conditional B-1 in the vicinity of this proposal. Per the aerial photos, Ms. Daughtridge explained that this land is undeveloped at this time with the entry roadway running basically through the center of the property into the platted subdivision of Beau Rivage. To the south of that is the Monterey Heights subdivision and north of that appears to be a mobile home park that has transitioned to a condominium complex as shown on later oblique maps. Mr. O’Keefe provided the following land use plan considerations and staff findings: Land Use Plan Considerations The 1986 Beau Rivage Plantation master plan indicates that the subject property is reserved for future development. In 2001, a plan was submitted to the County’s Technical Review Committee for 192 condominium units on the subject parcel but was denied because of excessive density that would exacerbate traffic conditions. Beau Rivage residents opposed the condominium project because they felt it would detract from the main entrance and compromise safety by increasing traffic. The maximum speed limit along Carolina Beach Road is 55 mph. Heavy, fast moving traffic along this stretch of Carolina Beach Road may provide challenges for drivers to merge into traffic and could lead to internal stacking of cars along Beau Rivage Drive. To travel north on Carolina Beach Road, drivers must execute a right turn, and then quickly move to the left lane to make a U-turn at the signalized intersection at Cathay Road. Residents of the Beau Rivage subdivision have gated access on Sanders Road and River Road to provide alternative routes for ingress/egress. A traffic impact analysis (TIA) would be required for uses that generate 100 peak hour trips. Policy 4.3 of the 2006 CAMA Land Use Plan promotes, “maximum effectiveness of commercial uses by assuring that land is available for commercial uses within close proximity to the markets they serve and by ensuring that such commercial uses do not diminish the quality of life in nearby residential areas.” The establishment of commercial 16 services at this location could benefit nearby residents by providing neighborhood services within walking/biking distance. Policy 5.7 of the 2006 CAMA Land Use Plan, calls for preserving the character of the area’s existing residential neighborhoods and quality of life by protecting existing residential neighborhoods and integrating development and growth with the input from residents. Recently the Beau Rivage Homeowners Association, the staff, and the Planning Board have all supported a request for a conditional (B-2) rezoning to convert an existing golf center and condominium complex into a golf resort and function facility with 80 hotel rooms adjacent to the subject property. Support for the nearby conditional rezoning request can be attributed to the predictability of knowing specifically what is being proposed and setting conditions on the development. This rezoning proposal requests the County’s most intensive commercial zoning district, which permits a broad range of uses (see enclosed B-2 Table). Opening this property, at the entrance to an established residential community, to the full range of uses permitted by right in B-2 districts would not be consistent with the intent of policy 5.7 of the 2006 CAMA Land Use Plan and could ultimately increase hazards to County residents entering and exiting the development while simultaneously diminishing their property values. Staff does recommend denial of the rezoning request based on its conclusion that the proposal is inconsistent with policy 5.7 of the County’s CAMA Land Use Plan and is not reasonable nor in the public’s interest to permit a broad range of high intensity commercial uses inside an established residential subdivision. Ken Shanklin, an attorney with Shanklin & Nichols, spoke on behalf of the applicant. He said this zoning request was filed in conjunction with the other zoning request which affected adjoining property that is now basically a hotel and zoned B-2 CD, which is commercial. For a number of years, this was a performance residential development. There are a number of criteria for that under the County’s R-10, R-15 and R-20 zones only, not B-2 or the others. Mr. Shanklin stated that on Monday night, he was quite surprised that the County Commissioners voted to approve rezoning of that area shown in blue on the map to a commercial use in a residential development. He explained the area to travel from the highway to the commercial use is over his client’s property. In the City, that couldn’t be done because traffic can’t travel over a residential subdivision road to access a commercial tract, but in the County there isn’t a similar ordinance. Mr. Shanklin stated his client was here tonight asking, for consistency purposes, that the area through which you travel from the highway to the project approved on Monday night be rezoned commercial as well. Mr. Shanklin concluded his presentation by stating that B-2 is an appropriate use for that area next to the highway and reserved all the comments and objections that he made on Monday night to to the other rezoning. Jay Williams requested that those wishing to speak on this item sign in. Scott Holmes, an attorney with Murchison, Taylor & Gibson, spoke on behalf of the Beau Rivage Homeowners Association in opposition to the rezoning request. He stated the homeowners have relied on a certain appearance of the property through which they drive every 17 day. They have appreciated the entrance to their community for a long time and feel there is really no inconsistency in supporting a golf club that has been in existence in the neighborhood as long as the neighborhood and not wanting to see an open B-2 located at the main entrance to their neighborhood. Mr. Holmes stated they would simply ask the board to support the decision of the staff, noting they respect their judgment and know the staff has looked at this issue very closely. Mr. Holmes then introduced Ms. Sylvia Joye, president of the Beau Rivage Homeowners Association. Sylvia Joye, the current president of the Beau Rivage Homeowners Association, stated the homeowners of Beau Rivage adamantly oppose the rezoning request of Isabella Holding. She asked the homeowners in attendance at the meeting who are opposed to the rezoning request to stand and be recognized. (Approximately 29 people stood to be recognized). Ms. Joye announced she would also like to present to the board a petition in opposition to to the rezoning with approximately 350 signatures. Ms. Joye then gave the petition to the planning staff. Ms. Joye stated the Beau Rivage Homeowners Association has maintained the Beau Rivage Drive area which bisects the Isabella Holding properties since 1989, when the association was formed by the developer. Since that time, the association has spent in excess of a quarter of a million dollars on the entrance property. Ms. Joye explained that to her knowledge, Isabella Holding has not contributed to the maintenance in any way. She noted the long, winding drive has always been a featured selling point of the property. The development name, Beau Rivage Plantation, was reinforced from the beginning by the beautiful driveway and the plantation appearance of the golf club. To turn this into a commercial thoroughfare would be against the implications and/or representations of every real estate agent that has ever sold a home in the Beau Rivage area. While Beau Rivage is not a completely private community, the other two entrances are gated and controlled by stickers placed on homeowners vehicles. The Beau Rivage Drive entrance is currently presented in such a way as to not attract individuals that do not have reasons to come into the community. Commercial development of this tract of land would encourage traffic and unnecessary visits. Traffic in the community could become a serious issue. The golf resort has been an integral part of this community since its inception and is the reason may residents purchased their homes and the reason many continue to live there. Ms. Joye stated we live in harmony with the golf resort and we have supported their improvements in the spirit that it would also improve our community. In conclusion, we, the residents of Beau Rivage, strongly support the staff’s recommendation of denial of the rezoning request and agree that it is not reasonable nor in our community’s interest. Cindee Wolf, of Withers & Ravenel, spoke on behalf of the owners of the Beau Rivage Golf Resort, stating they are strongly opposed to this proposal of a conventional rezoning because of the wide range of potential uses. In rebuttal, Ken Shanklin stated the petitioner stands on their petition. Mr. Williams closed the public hearing. 18 Richard Collier stated he doesn’t like the broad B-2 zoning for this property, acknowledging he didn’t like the B-2 for the clubhouse either. He said he liked the fact that when they came in with the conditional use, they had a project that was meeting the standards and a list of uses that would and would not be there. He commented that if the board was considering a B-2 conditional use today, he might have a different opinion, but with the list of permitted uses including everything down to dog kennels, it would be difficult to put that at the beginning of this neighborhood. Mr. Collier said he understands that Isabella Holding was certainly opposed to the Beau Rivage Golf Resort’s B-2 CD and that’s on record quite a lot, but he stated he can’t see any Planning Board member voting for a B-2 that broad. He explained that if Mr. Shanklin’s client has a project that they would like to bring before the board and presents it to the homeowners first explaining what they would be bringing to it, the board would certainly entertain it, but he stated he doesn’t think he can support a broad based B-2 in this location. Melissa Gott asked Mr. Shanklin about the way the property is dissected, noting part of the property can easily access Carolina Beach Road if the owner decides to develop one side. The other side abuts totally on the private road that Mr. Shanklin’s client gave a very strong argument was not a collector street. She said she was trying to understand why last month Mr. Shanklin’s firm argued it wasn’t a collector street and now it is a collector street sufficient to get his client’s B-2. Mr. Shanklin stated he was not changing his position with respect to what he said at Monday night’s commissioners meeting, noting his position is a little different from Matt Nichols’ position. Mr. Nichols attended the planning board meeting last month and Mr. Shanklin made the presentation on Monday night. He noted it might not meet that, but if you look at this from the standpoint that you have to travel through his client’s property to get to the commercial hotel, his property should be a similar zone. Ms. Gott agreed that it should be similar, but stated what the county rezoned the golf course is very different from what Mr. Shanklin is asking for his client’s piece of property. Mr. Shanklin stated he understood Ms. Gott’s point and explained he was looking at it more from a defensive standpoint. He noted if the commissioners had rejected the application on Monday night, his client would have withdrawn the rezoning request. Mr. Shanklin said his client wants to use his property and is trying to determine the best way to do that, explaining this request is part of that process. Ms. Gott stated she had absolutely no objection to the petitioner using his property to its highest and best use, she is just very concerned with the broad range of uses permitted in an unconditional B-2. Mr. Shanklin expressed his understanding of Ms. Gott’s concerns and explained they did not have time in view of the other project to develop an entire site plan which takes time, which was their main reason for requesting the continuance of this item to allow them to go over all of their options because they do have a number of options, including going back before the TRC with a preliminary site plan of that tract under a residential use. 19 Ms. Gott asked if Mr. Shanklin’s clients had any thoughts when they initially put in this application as to the purpose for which they would like to use the property, explaining it seemed they were arguing so strenuously that the County shouldn’t approve the clubhouse request and now they argue for an even broader range of uses. Mr. Shanklin stated they were hedging their bets with this request because they did oppose and still oppose the approval of the conditional rezoning on Monday night and noted they may appeal for judicial review. He stated this was basically a sort of defensive measure with respect to his client’s property and commented they don’t know if it can be or should be developed residentially in light of what happened at the hotel because right now, the entire 612 acres is not a performance residential subdivision development. Mr. Shanklin said it’s less than that on the site plans that have been approved since 1986 and they aren’t sure how that factors out, explaining they are still researching that point. He reiterated this was more of a defensive move than anything else in light of what happened earlier in the week. Mr. Williams stated his agreement with Ms. Gott and Mr. Collier that the B-2 is too broad and doesn’t narrow the issue. He explained to the residents of Beau Rivage that this is a rather odd situation to him, noting this is a very large residential development that has an entrance that is not secured by covenants or by some other means. He stated he doesn’t know the history of Beau Rivage and whether it was ever one master parcel and this piece was left and reserved. He said he doesn’t know the truth, but it is a rather unique circumstance that he doesn’t really find too palatable so it’s unfortunate for everybody. That said, he would expect the folks at Beau Rivage to understand that Mr. Shanklin’s client should not be deprived of the use of his property to some degree so no matter what the planning board does tonight, the residents should anticipate that he will want to use his property in some means. He stated that perhaps if they do conditional zoning districts or special use permits, the residents will have more input in what becomes of this piece of property. He noted he just wanted to lay the groundwork for what may happen in the future for the residents of Beau Rivage so that everybody is on the same page. Sue Hayes made a motion to recommend denial of Rezoning Request Z-903. Richard Collier seconded the motion. The Planning Board voted 6-0 to deny Rezoning Request Z-903. Technical Review Committee Report (April) Mr. Williams asked Ms. Daughtridge to confirm there wasn’t a Technical Review Committee report for the month of April. Jane Daughtridge confirmed the Technical Review Committee (TRC) did not meet during the month of April, explaining that was the reason Mr. Burgess did not attend tonight’s meeting. Mr. Williams stated this evening raised an interesting question and asked if it was true the County doesn’t have any ordinance that prevents access to a commercial development over a residential project. Mr. Williams wondered if the County should examine that issue and consider something similar to what the City apparently has in place. 20 Mr. O’Keefe stated he was curious about how the City addresses the issue and noted the County’s B-2 ordinance generally addresses it. He explained that a conditional use was chosen because it gets you around that requirement. Mr. O’Keefe said he’d be surprised if the City doesn’t have some way to get around it also, noting the City has much broader mixed use as well so they have opportunities to mingle commercial and residential uses together. Mr. O’Keefe commented that Planning staff is reviewing this in order to incorporate more opportunities to mix appropriate uses and bring those markets closer to the people they serve. The Land Use Plan recommends that and staff would like to make it possible, while also ensuring that protections remain in place for existing residential communities. Mr. O’Keefe commented that Mr. Williams’ points were good to make regarding the future development potential of Isabella Holding Company’s property. Melissa Gott asked about the tract of land, which is unique in that part of it abuts Carolina Beach Road which tends to be more commercial in nature, but then it runs all the way up through that residential area. She asked if they would have to split the tracts in order to accomplish a mixed use project over the entire tract and questioned how that type of situation would be handled. Ms. Gott stated she doesn’t believe it should stay residential, but she wouldn’t rezone it all commercial. Mr. O’Keefe stated the parcels could be changed any way the petitioner desired. The parcels could remain the same or be changed as determined by the development style. He explained for a conditional rezoning, you really need to have a project in hand and it will take some time to develop a piece of property as complex as that property. Jane Daughtridge stated that throughout this particular proposal for a conditional rezoning most of the complaints regarding that former project were because it was viewed as a B-2 Conditional. She explained, in her opinion, it is actually a Conditional District, which is a separate section of the ordinance, asking for specific B-2 uses so that argument is incorrect. The request is not trying to be a B-2 district, but is instead trying to be a Conditional District, which happens to allow in this case one B-2 use. Ms. Daughtridge commented that a conditional district is its own district, which is obviously associated with those other districts, but is separate and should be viewed that way. Jay Williams adjourned the meeting at 7:30 p.m. _______________________________________ Chris O’Keefe, Planning & Inspections Director