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2010-05-03 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 815 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, May 3, 2010, at 6:00 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street,Wilmington,NC. Members present were: Chairman Jason R. Thompson; Vice-Chairman Jonathan Barfield, Jr., Commissioner Robert G. Greer, Commissioner William A. Caster, Commissioner Ted Davis, Jr., County Attorney Wanda M. Copley, Clerk to the Board Sheila.L. Schuh and County Manager Bruce T. Shell. Chairman Thompson called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Reverend Richard G.Elliott, St. Andrew's On-the-Sound Episcopal Church,gave the invocation. Commissioner Davis led the audience in the Pledge of Allegiance to the Flag. APPROVAL OF CONSENT AGENDA Chairman Thompson asked if any member of the Board would like to remove any item from the Consent Agenda. Hearing no comments, Chairman Thompson called for a motion to approve the items on the Consent Agenda as presented. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Barfield, to approve the items on the Consent Agenda as presented. Upon vote,the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes—Governing Body The Commissioners approved the minutes from the following meetings as presented by the Clerk to the Board: Joint meeting with the New Hanover Regional Medical Center held on April 13, 2010 Agenda Review meeting held on April 15,2010 Regular Session meeting held on April 19, 2010 Closed Session meeting held on April 19,2010 Adoption of Resolution Approving the NCDOT Secondary Road Construction Program for FY2005-2010 — Governing Body The Commissioners adopted the resolution approving the NCDOT Secondary Road Construction Program for FY 2005-2010 as was presented at the Board's March 15,2010 meeting. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXXIII,Page 10.1. Appointment of Al Hight to the Cape Fear Resource Conservation and Development Council — Governing Body The Commissioners appointed Director of Cooperative Extension Al Hight to serve as New Hanover County's representative on the Cape Fear Resource Conservation and Development Council. Adoption of Resolution Appointing Map Review Officers—Planning Department The Commissioners,pursuant to North Carolina General Statute 47-30.2,adopted the resolution appointing Map Review Officers to examine and approve plats and maps prior to recordation at the Registry of Deeds. A resolution designating a Review Officer must be recorded in the county registry and indexed on the grantor index in the name of the Review Officer. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXXIII,Page 10.2. Approval of Release of Tax Value for Arid Serenity Association Inc.—Tax Department The Commissioners, pursuant to North Carolina General Statute 105-278.7, approved the release of tax value for Arid Serenity Association, Inc. in the amount of$6,997.93 for parcel R05618-003-016-000 as the property is used for charitable purposes. Approval of New Hanover County Board of Education Revised Budget Amendment#2—Budget Department The Commissioners, at the request of the New Hanover County Board of Education, approved the revision to Budget Amendment #2. The revision reflects a pension fund that has been closed with the remaining balance being County dollars. The amendment returns $300,000 to the County with$34,424 being retained by the Board of Education to be used for utilities. A copy of the revised budget amendment is available for review in the Budget Department. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 816 Approval of New Hanover County Board of Education Capital Outlay Budget Amendment #8 — Budget Department The Commissioners, at the request of the New Hanover County Board of Education, approved Budget Amendment #8. The amendment transfers funds between capital projects, establishing budgets for the projects lottery funds applications that were approved at the April 19, 2010 County Commissioners meeting, as well as budgeting E-Rate and Energy Efficiency rebate revenue. To date lottery funds in the following amounts have been received: March 26,2010-$4.2 million and April 19,2010-$2.5 million. A copy of the budget amendment is available for review in the Budget Department. Adoption of Budget Ordinance Amendment—Budget Department The Commissioners adopted the following Budget Ordinance Amendments for fiscal year ending June 30, 2010: 10-228- Sheriff's Office A copy of the budget ordinance amendment is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXIII,Page 10.3. REGULAR ITEMS OF BUSINESS ADOPTION OF PROCLAMATION RECOGNIZING MAY 2010 AS NATIONAL PRESERVATION MONTH IN NEW HANOVER COUNTY Historic Wilmington Executive Director George Edwards and Historic Wilmington Foundation Board President Lawrence Craige submitted the request for the Board's consideration to proclaim May 2010 as National Preservation Month in New Hanover County and were present to receive the proclamation. This year's theme is "Old is the New Green." Commissioner Caster read the proclamation into the record and moved for adoption. Motion: Commissioner Caster MOVED, SECONDED by Chairman Thompson, to adopt the proclamation recognizing May 2010 as National Preservation Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXXIII,Page 10.4. PRESENTATION BY THE FOOD BANK OF CENTRAL AND EASTERN NORTH CAROLINA Food Bank of Central&Eastern North Carolina Wilmington Branch Development Manager Jennifer Caslin provided the following information: • Serves Brunswick, Columbus,New Hanover and Pender Counties: • Five employees including a full time truck driver; • The Wilmington warehouse is approximately 11,190 square feet and has the capacity to store over 137 pallets of dry storage and 24 pallets of refrigerated/frozen food: • In New Hanover County the number of individuals living below poverty level is 26,022; 7,234 are children; 2,446 are senior citizens: 10,240 children are receiving free and reduced lunch; since September 2009 there are 19,444 individuals receiving food stamps: • In Fiscal Year 08-09 a total of 1.8 million pounds of food was distributed with a value of$2.9 million; • In New Hanover County over 72,005 households were served and 170,000 individuals; • Food is distributed through food pantries, soup kitchens, group homes, elderly care centers, and after school programs;and • A donation of$1 buys$8 of food or four meals. In closing, Ms. Caslin thanked the Board for their support and the opportunity to share how the Food Bank is serving the citizens of New Hanover County. PUBLIC HEARING AND APPROVAL OF TEXT AMENDMENT TO ADD SECTION 50-4 TO THE ZONING ORDINANCE ALLOWING A SPECIAL DENSITY EXCEPTION FOR ABANDONED UTILITY LOTS(A-385,4/10) Planning and Zoning Manager Jane Daughtridge presented the request by staff to add Section 50-4 to the Zoning Ordinance allowing a special density exception for abandoned utility lots. The amendment will allow the conversion of former utility parcels to buildable lots in all residential districts highlighting the following information: • Section 50.4 -Special Density Exception for Pre-existing Utility Parcels. • Section 50.4-1 -Where allowed—in all residential districts. • Section 50.4-2-Applicability: • Includes older subdivisions with prior private utility systems • Total acreage was used for performance density • Public service has been replaced with private service NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 817 o Allows one dwelling unit per utility parcel now abandoned • Section 50.4-3 -Where special exceptions are not allowed. • Section 50.4-4-Approval of Special Exceptions-The Planning Director(or his designee) shall review each case in which a special exception is requested. At its April 1, 2010 meeting, the Planning Board voted 4-0 to recommend approval of the proposed amendment with no additions. No one from the public spoke on this item. Chairman Thompson asked if anyone from the public wished to speak in favor of or opposition to the request. Hearing no comments, Chairman Thompson closed the Public Hearing and requested direction from the Board. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Barfield,to approve adding Section 50-4 to the Zoning Ordinance allowing a Special Density Exception for abandoned utility lots as presented finding that the request is: 1) consistent with the purposes and intent of the policies 3.9, 11.3 and others adopted in the 2006 Land Use Plan; and 2) reasonable and in the public interest to create a special exception to allow conversion of former utility parcels to buildable lots. Upon vote,the MOTION CARRIED UNANIMOUSLY. A copy of the ordinance amending the Zoning Ordinance is hereby incorporated as part of the minutes and is contained in Exhibit book XXXIII,Page 10.5 PUBLIC HEARING AND APPROVAL OF TEXT AMENDMENT TO ADD SECTION 72-40 TO THE ZONING ORDINANCE TO DEFINE AND SPECIFY STANDARDS FOR ELECTRONIC GAMING OPERATION AND THE TABLE OF PERMITTED USES ALLOWING ELECTRONIC GAMING OPERATIONS PERMITTED BY SPECIAL USE PERMIT IN B-2 AND I-1 DISTRICTS WHEN THE STANDARDS ARE MET AND BY-RIGHT AS AN ACCESSORY USE IN B-1, B-2, I-1 AND I-2 DISTRICTS AND ADOPTION OF RESOLUTION REQUESTING SPECIAL LEGISLATION FROM THE GENERAL ASSEMBLY AUTHORIZING THE COUNTY TO LEVY A PRIVILEGE LICENSE ON INTERNET GAMING/SWEEPSTAKES DEVICES IN THE UNINCORPORATED AREA (A-386,4/10) Chairman Thompson opened the Public Hearing and requested staff to make the presentation. Planning and Inspections Director Chris O'Keefe presented the request by staff to add Section 72-40 to the Zoning Ordinance to define and specify standards for electronic gaming operation and add to the table of permitted uses electronic gaming operations permitted by Special Use Permit in B-2 and I-1 Districts and by-right as an accessory use in B-1, B-2, I-1 and I-2 Districts when standards are met. The Planning Board, at its April 1, 2010 meeting,voted 4-0 to recommend approval of an amendment requiring special use permits. No one from the public spoke on this item. Director O'Keefe presented the proposed text amendment noting that the proposed version has been modified based on input from Board discussion highlighting the following: • Article IL Definitions-Add a new definition on Electronic Gaming Operations. • Article V: Permitted Uses Table - Add to the Table of Uses that electronic gaming operations will be permitted as a special use in B-2 and I-1, except as outlined in Section 69.19 of this ordinance. • Article VI: Supplementary Regulations - Add Section 69.19 Electronic Gaming Operation Sweepstakes) -Electronic Gaming Operations shall be permitted by right as an accessory use to other commercial operations permitted by right in the B-1, B-2, I-1 or I-2 Zoning Districts when the approved standards are applied. • Article VIL Provisions for Uses Allowed as Special Uses - Add Section 72-40 Electronic Gaming Operation (Sweepstakes) except as provided in Section 69.19, electronic Gaming Operations shall be permitted in accordance with the table of uses and subject to the approved standards. Chairman Thompson asked if anyone from the public wished to speak in favor of or opposition to the request. Hearing no comments, Chairman Thompson closed the Public Hearing and requested direction from the Board. Commissioner Greer suggested the following changes to Article VI: Supplementary Regulations - Section 69.19 Electronic Gaming Operation relating to the proposed standards: • Standard 7 be eliminated completely; • 1000 feet be changed to 500 feet; and • 24 months be changed to sixty months. In response to Board questions, Director O'Keefe clarified that the annual review referenced in standard 7 would be performed by the zoning enforcement staff and a fee could be charged much as is done with the Health Department for restaurant inspections. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 818 Motion: Commissioner Greer MOVED, SECONDED by Chairman Thompson,to approve adding Section 72-40 to the Zoning Ordinance to define and specify standards for electronic gaming operation and add to the table of permitted uses electronic gaming operations permitted by Special Use Permit in B-2 and I-1 Districts when the standards are met and by-right as an accessory use in B-1, B-2, I-1 and I-2 Districts finding that the request is: 1) consistent with the purposes and intent of policy 4.3 adopted in the 2006 Land Use Plan; and 2) reasonable and in the public interest to amend the ordinance to add use standards specific to electronic gaming operations with the following changes to the request as presented: in Article VI: Supplementary Regulations- Section 69.19 Electronic Gaming Operation standards: 1) 1000 feet to be changed to 500 feet; and 2)24 months be changed to sixty months. Upon vote, the MOTION CARRIED 4 to 1. Commissioner Davis voted in opposition stating that he supported keeping the amendment as was presented without the changes. Planning and Inspections Director O'Keefe continued reporting that for the Board's consideration is a resolution requesting special legislation from the General Assembly giving the County the authority to levy a privilege license on internet gaming/sweepstakes devices in the unincorporated county. Currently counties do not have the same authority as municipalities to levy a privilege license fee with the fees typically running between $2,000 and$3,000 per machine. Zoning Enforcement Officials would handle the inspections much as is done by the Health Inspectors for restaurants. After brief discussion concerning that the fee amount will be set when authorization has been received from the General Assembly, Chairman Thompson requested direction from the Board. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Barfield, to adopt the resolution requesting special legislation from the General Assembly giving the County the authority to levy a privilege license on internet gaming/sweepstakes devices in the unincorporated county as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. Planning and Inspections Director O'Keefe requested direction from the Board on how to proceed with the three requests that are currently in the pipeline. Assistant County Attorney Sharon Huffman provided an overview of the three pending permits: • The old Jones Seafood building on Market Street-application was made for a permit in February and was in the process of being approved with a building permit number assigned to the project. The permit is not issued until the fee has been paid with other items needing to be finished before the Certificate of Occupancy is issued. • The Cape Fear Marine building on Market Street—application was made by a potential tenant but fell through with another potential tenant taking over and continuing the alterations with the Inspections staff not being informed of the change in tenants,the permit does not carry from one tenant to another. • Castle Hayne—permit application was submitted and lease was signed. After brief discussion, Chairman Thompson requested direction from the Board. Motion: Commissioner Greer MOVED, SECONDED by Commissioner Caster, to direct staff to issue the three permits that are currently pending for the internet gaming/cyber sweepstakes establishments as presented. Upon vote,the MOTION CARRIED 4 to 1. Commissioner Davis voted in opposition. A copy of the ordinance amending the Zoning Ordinance is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXIII,Page 10.6. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXXIII,Page 10.7. BREAK Chairman Thompson called for a break at 7:12 p.m.until 7:27 p.m. PUBLIC HEARING AND APPROVAL OF REZONING AND CONDITIONAL USE PERMIT REQUEST BY BEAU RIVAGE GOLF & RESORT, LLC TO REZONE APPROXIMATELY 8.54 ACRES OF PROPERTY LOCATED 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 TWO-STORY GOLF RESORT AND FUNCTION FACILITY WITH AN 80-ROOM HOTEL AND SEPARATE PRIVATE CLUBHOUSE (Z-900,1/10) Chairman Thompson opened the Public Hearing and announced that the special use process requires a quasi-judicial hearing, therefore, the Clerk to the Board must swear in any person wishing to testify. He requested all persons who signed in to speak or who want to present testimony to step forward to be sworn in. The following persons were sworn in: Jane Daughtridge Chris O'Keefe Cindee Wolf Thomas H. Johnson Jr. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 819 Matthew A.Nichols Sylvia Joye Kenneth A. Shanklin Nathan Sanders Planning and Zoning Manager Jane Daughtridge presented the request by Beau Rivage Golf&Resort,LLC to conditionally rezone approximately 8.54 acres of property located 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 two-story golf resort and function facility with an 80-room hotel and separate private clubhouse and presented a slide overview of the request. The subject property is located in the southern portion of the county in an area classified as Transition on the 2006 CAMA Land Classification map. It is south of Sanders Road and the Beau Rivage Market Place Shopping Center. The property is accessed from Rivage Promenade, a neighborhood collector street which connects to the Carolina Beach Road arterial via Beau Rivage Drive. Traffic counts between 2008 and 2009 indicated an average daily traffic decrease of about 32%just north of this location at Sanders Road. Carolina Beach Road has a 2007 Level of Service (LOS) of E north of the site (classified as LOS F by MPO), meaning the road is operating at its design capacity and Level of Service C just south of the site, meaning there is a stable traffic flow in that direction. A traffic impact analysis(TIA)has been provided indicating that additional traffic generated by the revised uses will generate about 662 trips per day,though peak hour traffic would be anticipated to remain well below 100 additional trips. The project is located just north of the intersection of Cathay Road and Carolina Beach Road, a signalized intersection. Neighboring properties are zoned R-15 medium density residential. The Carolina Beach Road frontage lots on neighboring properties are largely commercial. The new plan proposes to increase the open space from 160,334 square feet to 172,325 square feet. Planning and Inspections Director Chris O'Keefe reported that 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. 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 32 condominium units. Operation of the clubhouse and original condominiums has morphed into 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 commercial facilities, a new approach is required. The owner proposes a conditional rezoning to CD (B-2)in order to accommodate a hotel and public restaurant as well as a 350-seat facility to rent out for events in addition to an enlarged clubhouse. The purpose of a conditional use district is to address situations where a particular use would be consistent with the County's land use plan and zoning ordinance, but none of the zoning districts, that would allow the proposed use, are acceptable. Conditional use districts are primarily intended as transitions between zoning districts of very dissimilar character (e.g. R-15 and B-2), where restrictive conditions can be placed on the proposed use to safeguard adjacent land uses. Further, conditional use districts are described in the county ordinance as one "intended only 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(HOA)to review the particulars of their proposal and a letter of support from the HOA president is included in the application materials. 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. However, 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 impacts of the project as well as certainty of the uses that will be in place. The proposal cannot be severed from the Beau Rivage performance residential development because the two are inexorably linked through the open space requirement, so the parcel must remain part of the subdivision even if the rezoning is approved. Planning and Inspections Director Chris O'Keefe read the findings of facts into the record and reported that at the Planning Board meeting on April 1, 2010,they voted 4 to-0 to recommend approval of the CD (B-2)rezoning based on positive findings of fact, with the condition that all road improvements outlined in the traffic impact analysis are met. The applicant's counsel accepted the condition of the recommended approval. The attorney for one adjacent property owner, Isabella Holding Company, LLC spoke in opposition to the conditional rezoning. Staff recommends approval of the rezoning request. Chairman Thompson asked if anyone from the public wished to speak in favor of the request. Thomas H. Johnson Jr., attorney for the petitioner, stated that the petitioner desires to bring the current use into compliance with the zoning ordinance and provide an economic development project for the community. Although the neighborhood collector street is a private road, it is consistent with the characteristics of a collector street and functions as a collector street. Cindee Wolf of Withers and Ravenel presented an overview of the proposed project saying that the plans call for an expansion of the facility and to rebuild. In regards to the private road designation,the owners of the golf facility and the homeowners association have the full responsibility of maintaining the access road from Carolina Beach Road to the project. The TIA has suggested improvements that will be implemented and improve traffic NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 820 movements on Carolina Beach Road. The proposed rezoning would allow a more efficient and quality project and correct some inconsistencies with the regulations as well as increase the amount of green space. The plans comply with State and County regulations using low-impact development methods and improving storm water management for the community. The conditional use process allows restrictive conditions that safeguard and protect adjacent land uses and this project meets the requirements and intent of the special use process and will be an asset to the community. In response to the Commissioners' questions, Mike Kozlosky, Executive Director of the Wilmington Metropolitan Organization, explained that the private road is designated as a neighborhood collector street and meets the standards for a collector street. He presented the following requirements of the TIA: • Convert the existing southbound U-turn approach on Carolina Beach Road from permitted-only to protected-permitted signal operation, utilizing a flashing yellow arrow (FYA) indication. A Traffic Agreement must be executed with NCDOT prior to modification of the traffic signal. • Implementation of protected-permitted signal operation at this location will require the northbound and southbound left-turn lanes to be positively offset. • Accommodate southbound-to-northbound U-turn movements on Carolina Beach Road with the construction of a U-turn bulb on the east side of the intersection. The bulb must be designed to Passenger(P)Car design vehicle specifications. Sylvia Jove, president of the Beau Rivage Homeowners Association spoke in support of the project saying the majority of the members voted in support of the proposed golf resort renovation plans and the request for the CD (B-2)rezoning. Chairman Thompson asked if anyone from the public wished to speak in opposition to the request. Kenneth A. Shanklin, attorney for Isabella Holding, LLC, the adjacent property owner of the Beau Rivage Golf and Resort,presented the following exhibits to the Board: A. Section 55: B-2 Highway Business District of the County Zoning Ordinance B. Chart A to the Beau Rivage Plantation Preliminary Site Plan(April 11, 2002) C. Chart B to the Beau Rivage Plantation Preliminary Site Plan(April 11, 2002) D. Settlement Agreement— Billy Earl, LLC et al vs. New Hanover County et al, File Number 02 CVS 3589 E. Section 51.5-2: Regulations applicable to Residential Districts of the County Zoning Ordinance F. Sections 52, 52.5, 53 (R-20,R-15,R-10)of the County Zoning Ordinance Matthew A. Nichols, attorney for Isabella Holdings,LLC, stated that Isabella Holding owns approximately 11 acres of property between the golf resort and Carolina Beach Road, excluding the property with the building along side of Carolina Beach Road. He argued that the proposed plan does not meet the basic criteria of the B-2 Highway Business Zoning District since the property is not located on a major highway or designated on the Thoroughfare Classification Map. Attorney Shanklin presented the history of the performance residential development of Beau Rivage saying that the preliminary plan for the 612-acre tract was approved in 1986. In 2002,the TRC changed the map reducing the number of units. As a result, the property owners and the County were in litigation and have a settlement agreement signed in February 2004. He argued that the proposed rezoning violates the agreement and the open space requirements of the zoning ordinance and that the property cannot be rezoned without affecting the performance residential development standards and the remaining units for the undeveloped land. Nathan Sanders, of Isabella Holding, LLC, spoke in opposition to the project saying that the settlement agreement required him to give up density rights for 375 units. Additionally, any expansion of the Beau Rivage golf resort requires the owner to purchase density rights from him. He said that he was not notified of the developers' required meetings with the homeowners association even though he is a property owner in Beau Rivage and that he disagreed with the new approach of changing the residential subdivision into commercial property and increasing the 32 units into 80 hotel rooms. In further discussion and responses to the Commissioners' questions, Mr. Shanklin said that the proposed project adversely affects his client because the B-2 classification does not conform to performance residential development. Any property rezoned to B-2 should be extracted from the 612 acres to recalculate the density, which would violate the settlement agreement and the zoning ordinance. Chairman Thompson asked for rebuttal comments. Attorney Johnson responded that the proposed rezoning would allow for a better project and remove any non-conforming uses. The proposed plan will add 5% more green space and will not violate the settlement agreement. Attorney Nichols presented the following exhibits, stating that the Notice of Disclosure on the final map of the golf course tracts are linked to the open space requirements and the overall density allocation to Beau Rivage Plantation. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 821 A. Certified copy of Beau Rivage Plantation Phase 1,Map Book 26,page 80 B. Certified copy of Beau Rivage Plantation Golf Course Tracts,Map Book 38,page 55-59 C. Copy of the Greater Wilmington Urban Area Metropolitan Planning Organization Thoroughfare Plan He argued that any property rezoned B-2 can no longer be used in determining open space, which violates section 19, paragraphs 28 -30 of the of the settlement agreement. He also disagreed with staff findings saying that the proposed use will substantially injure the value of adjoining or abutting property. Attorney Johnson, on behalf of the petitioner, agreed to staff's findings of fact and the recommended conditions of the Planning Board as well as the road improvements recommended by the TIA. In further discussion, Planning and Inspections Director O'Keefe stated that staff carefully addressed the rezoning issues to protect the settlement agreement and the performance residential development regulations. According to the ordinance, hotel rooms are not counted as units and do not reduce the open space requirements. The settlement agreement determines the number of units available to Mr. Sanders for the undeveloped property. Assistant County Attorney Sharon Huffman agreed saying the County's interpretation of the settlement agreement is that Mr. Sanders has 112 units to develop and the County can provide a letter to Mr. Sanders stating that the conditional use rezoning and special use permit does not violate the settlement agreement and that he has the right to develop 112 units. She advised the Board that in granting a special use permit,they must determine that the use meets the four requirements of the special use permit. In particular, if completed as proposed, the development more probable than not,cannot not meet all required conditions and specifications. Hearing no further comments, Chairman Thompson closed the Public Hearing and requested direction from the Board. Motion: Vice-Chairman Barfield MOVED, SECONDED by Commissioner Caster,to approve the request by Beau Rivage Golf& Resort, LLC to conditionally rezone approximately 8.54 acres of property located at 649 Rivage Promenade from R-15 Residential District to CD (B-2) Conditional District finding that the request is: 1) consistent with the purposes and intent of the Conditional Use District outlined in section 59.7-1 of the New Hanover County Ordinance and Policy 18.2 of the 2006 CAMA Land Use Plan; and 2)reasonable and in the public interest to allow expansion of a golf resort subject to the companion special use permit. Upon vote, the MOTION CARRIED UNANIMOUSLY. Motion: Commissioner Caster MOVED, SECONDED by Vice Chairman Barfield,to grant a special use permit to Beau Rivage Golf & Resort, LLC to convert an existing golf center and condominium complex at 649 Rivage Promenade into a two-story golf resort and function facility with an 80-room hotel and separate private clubhouse based on the evidence presented and the findings of facts concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3)the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4)the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 4 OF NEW 14ANOVER COUNTY, NORTH CAROLINA, ADOPTED ON APRIL 7, 1971, is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 4,Page 87. A copy of the order granting the Special Use Permit and listing the findings of facts is contained in SUP Book IV,Page 33. COMMITTEE APPOINTMENT TO ABC BOARD Chairman Thompson reported that on April 19, 2010 the Board appointed John Lyon to a two-year term on the ABC Board. Due to his current workload, Mr. Lyon resigned from the ABC Board on April 21, 2010. Chairman Thompson requested nominations to fill a two-year term on the ABC Board. Commissioner Greer nominated Jesse J. Thomas. The nomination was seconded by Commissioner Caster. Commissioner Caster nominated Sam Darakjy. No second was received. Vice-Chairman Barfield nominated Cedric A. Dickerson. The nomination was seconded b� Chairman Thompson. Hearing no further nominations Chairman Thompson received the following votes: Vote: The Board voted 2 to 3 to appoint Jesse J. Thomas to serve a two-year term on the ABC Board with the term to expire on June 30,2012. Commissioners Caster and Greer voted in favor of the nomination. Vote: The Board voted 3 to 2 to appoint Cedric A. Dickerson to serve a two-year term on the ABC Board with the term to expire on June 30, 2012. Chairman Thompson, Vice-Chairman Barfield and Commissioner Davis voted in favor of the nomination. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING,MAY 3,2010 PAGE 822 NON-AGENDA ITEMS Chairman Thompson announced that time had been reserved to allow the public to present an item that was not listed on the regular agenda. No items were presented. ADDITIONAL AGENDA ITEMS OF BUSINESS UPDATE ON COUNTY'S BOND RATING County Manager Bruce Shell announced that the County has received notification that our bond rating has been increased from the highest AA to a AAA bond rating. Other North Carolina Counties with the same rating include Guilford,Wake,Durham,Mecklenburg and Forsyth. ADJOURNMENT There being no further business, Chairman Thompson adjourned the meeting at 9:12 p.m. Respectfully submitted, Sheila.L. Schult Clerk to the Board The minutes for Agenda Item 12 - Public Hearing and Conditional Rezoning Request submitted by Beau Rivage Golf & Resort, LLC. are respectfully submitted by, Teresa P.Elmore Deputy Clerk to the Board Please note that the above minutes are not a verbatim record of the New Hanover County Board of Commissioners meeting. The entire proceedings are available for review and check-out at all New Hanover County Libraries.