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2014-03-10 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 34 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, March 10, 2014, at 6:00 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, NC. Members present:Chairman Woody White; Vice-Chair Beth Dawson; Commissioner Jonathan Barfield, Jr.; and Commissioner Thomas Wolfe. Commissioner Brian M. Berger was absent. Staff present: County Attorney Wanda M. Copley; County Manager Chris Coudriet; and Clerk to the Board Sheila L. Schult. NON-SECTARIAN INVOCATION AND PLEDGE OF ALLEGIANCE Pastor Wayne Johnson, Sr., St. Stephen A.M.E. Church, provided the invocation and Commissioner Barfield led the audience in the Pledge of Allegiance to the Flag. APPROVAL OF CONSENT AGENDA Chairman White asked if any member of the Board would like to remove or discuss any item on the Consent Agenda. Hearing no comments, Chairman White requested a motion to approve the Consent Agenda noting that approval includes the additional item approving the waiver of Landfill tipping fees for the National Society of the Daughters of the American Revolution, Wilmington Ladies Tea Walk Chapter as presented. Motion: Vice-Chair Dawson MOVED, SECONDED by Commissioner Barfield, to approve the Consent Agenda as presented. Upon vote, the MOTION CARRIED 4 TO 0. CONSENT AGENDA Approval of Minutes – Governing Body The Commissioners approved the minutes from the following meetings as presented by the Clerk to the Board: Agenda Review Meeting held on February 13, 2014 Regular Meeting held on February 17, 2014 Acknowledgment of New Hanover County State of Emergency Proclamation and Termination of State of Emergency in the County of New Hanover Proclamation – Governing Body The Commissioners, pursuant to North Carolina General Statute 166A-19.22, acknowledged the New Hanover County State of Emergency Proclamation and Termination of State of Emergency in the County of New Hanover Proclamation. A copy of the proclamations is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.1. Adoption of Resolution Designating Map Review Officers for the City of Wilmington and New Hanover County, Carolina Beach, Kure Beach, and Wrightsville Beach – Planning Department The Commissioners, pursuant to North Carolina General Statute 47-30.2, adopted the resolution designating Map Review Officers to examine and approve plats and maps prior to recordation at the Register of Deeds. A copy of the resolution is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.2. Acceptance of January 2014 Tax Collection Reports – Tax Department The Commissioners accepted the following Tax Collection Reports as of January 2014: New Hanover County Fire District New Hanover County Copies of the Tax Collection Reports are hereby incorporated as part of the minutes and are contained in Exhibit Book XXXVIII, Page 5.3. Adoption of Budget Ordinance Amendment – Budget Department The Commissioners adopted Budget Ordinance Amendment 14-056 – Library for fiscal year ending June 30, 2014. A copy of the budget ordinance amendment is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.4. Approval of Application to Waive Landfill Tipping Fees for the National Society of the Daughters of the American Revolution, Wilmington Ladies Tea Walk Chapter – Environmental Management The Commissioners approved the application to waive Landfill tipping fees for the National Society of the Daughters of the American Revolution, Wilmington Ladies Tea Walk Chapter. It is estimated that between thirty NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 35 and forty cubic yards of waste will be taken to the landfill for an estimated tipping fee of $1,770 - $2,360. To date for the current fiscal year, a total of $60,596 in tipping fees (1,027 tons) has been waived. REGULAR ITEMS OF BUSINESS ADOPTION OF GIRL SCOUT WEEK PROCLAMATION Chairman White reported thatRebecca Taylor representing the North Carolina Coastal Pines Girl Scouts has submitted a proclamation for the Board's consideration to recognize the week of March 10, 2014 as Girl Scout Week in New Hanover County. Ms. Taylor, accompanied by Girl Scouts, was in attendance to receive the proclamation. Vice-Chair Dawson read the resolution into the record and moved for adoption. Motion: Vice-Chair Dawson MOVED, SECONDED by Commissioner Wolfe, to adopt the proclamation recognizing the week of March 10, 2014 as Girl Scout Week in New Hanover County as presented. Upon vote, the MOTION CARRIED 4 TO 0. A copy of the proclamation is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.5. WINTER STORM DEBRIEF AND UPDATE Emergency Management/911 DirectorWarren Lee provided an overview of the process utilized in reaction to the recent winter storm. Opportunities for improvement include yearly updates with host facilities to ensure operational readiness; conduct additional full-load electrical testing of generators at school shelter sites in conjunction with County schools’ calendar including quarterly preventative maintenance; and work on a more regular basis with the entities that care for the adults in our community who have medical needs. Environmental Management Director Joe Suleyman provided an overview of the progress being made in picking up the storm debris in the unincorporated areas of the County. Currently there are nine trucks serving the unincorporated areas; as of yesterday evening over 48,000 cubic yards of debris has been removed with nine of 38 zones cleared. To expedite efficiency, three sites in different County locations have been established as collection areas. The one take away is that with limited staff to handle the onslaught of phone calls there is a need to bring in additional staff to assist. After a brief question and answer period, Chairman White thanked Mr. Lee and Mr. Suleyman for the updates. PUBLIC HEARING AND CONTINUATION OF SPECIAL USE PERMIT REQUEST BY ACI PINE RIDGE, LLC TO DEVELOP A MIXED-USE DEVELOPMENT ON A 37.9-ACRE PARCEL LOCATED AT THE 100 BLOCK OF PORTERS NECK ROAD UNTIL THE BOARD’S JUNE 16, 2014 MEETING (S-617, 1/14) Chairman White 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: Chris O’Keefe Ben Andrea James Black, Jr. Brantley White Lyle Overcash Bill Batuyios Matt Nichols Ken Shanklin Neal Shepherd Bette Bauereis Frank Pinkston Dick Elmer Current Planner Ben Andrea presented the request by ACI Pine Ridge, LLC, to develop a mixed-use development on a 37.9 acre parcel located at the 100 block of Porters Neck Road and provided a slide overview of the request. The request is for residential uses within the current B-1 Business District as part of a mixed-use development containing 273 multifamily residential units within thirteen buildings, four residential parking garages, a clubhouse and associated amenities for the residential units, as well as 40,000 square feet of non-residential uses including "retail, restaurants, hotel, and shops" within five separate buildings. It is classified as Transition and Wetland Resource Protection Area according to the 2006 CAMA Land Use Plan. The site is accessed by a stub to the existing Porters Neck district that was installed to serve a 2007 crossing concept which was originally envisioned as a very large retail development with no residential uses. A NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 36 Traffic Impact Analysis was conducted in 2007 which led to the current access improvements to the Market Street intersection. The 2007 Traffic Impact Analysis was updated to reflect the current proposal which was approved by NCDOT finding that the current proposal is significantly less than the traffic that was to be generated from the original proposal, and as such, no additional improvements will be required. The Wilmington Metropolitan Planning Organization performed a traffic count in the area with the results showing that in the vicinity of the site, Market Street had an average daily volume of 34,557, with a design capacity of 43,700 vehicles per day; this represents a volume to capacity ratio of 0.79 and a level of service “D”. At their February 6, 2014 meeting, the Planning Board voted 6-0 to recommend approval of the special use permit with no one from the public speaking in support of the request and three people speaking in opposition citing concerns about traffic congestion and runoff into nearby wetlands. Staff recommends approval concluding that the applicant has demonstrated that the proposal meets Section 72-38 of the Zoning Ordinance and is consistent with the applicable policies of the CAMA Land Use Plan, as well as consistent with the management strategies for Transition and Wetland Resource Protection land use classifications. In response to Board questions, Mr. Andrea confirmed that the Exceptional Design Zoning District was not appropriate for this project due to the 100 foot set-back to the wetlands. Matt Nichols, attorney for the Petitioner, provided a brief overview of the request highlighting that the request is for a special use permit for residential use within a commercial district which is currently zoned B-1. He requested Mr. Shepherd provide an overview of the request. Neal Shepherd, Blue Ridge Engineering, provided a slide overview of the proposed project highlighting that substantial infrastructure has been installed on the site including streets, water, sewer and storm water; the wetlands disturbance permit has been obtained. The Lowes home improvement store was the first building that was built. The project before the Board is an alternative use for Phase II which incorporates 273 multi-family units and 40,000 square feet of commercial space instead of 100% commercial. An updated traffic study shows that the current revised mixed-use plan is a 66% reduction in daily traffic than what was previously approved. The roadway permits for both Phase I and II are completed and no additional roadway improvements are required. In response to Board questions concerning the Traffic Impact Analysis report, Lyle Overcash, VHB, reported that the process used in the analysis included a 3% background growth rate to project to 2020 with the assumption that the apartments would be built out by 2015 and the remaining 40,000 square feet of commercial space would be built out by 2020. The numbers include the Wal-Mart development as well as the other apartment complex. Bill Batuyios, Atlantic Appraisal Associates, Inc., reported that in his professional opinion the proposed mixed-use project will not substantially injure the values of the surrounding properties and the proposed use is typical, compatible, and in harmony with the surrounding properties. In response to Board questions concerning if he had ever not endorsed a project, he reported that there was a boat storage project that he reviewed with his professional opinion being that the project would not have been the best use of the property and would have had a negative impact on the surrounding property values. Chairman White stated that three persons had signed up to speak in opposition to the request. Bette Bauereis, resident of Porters Neck Plantation, voiced her concerns to the proposed mixed-use project stating that she would prefer the original commercial development citing traffic concerns. If approved, she suggested the following conditions be attached: 1) require the developer to extend Porters Neck Road to intersect with Military Cutoff Extension which will be built in the near future; 2) the occupancy permit for the 273 apartment units should coincide with completion of the Military Cutoff Extension and not before; and 3) to insure a mixed-use development, timing for the 40,000 square feet commercial development should be concurrent with the apartment construction or specify a certain time frame to which the developer must agree. Frank Pinkston, resident of Porters Neck, requested that the Developer be held to the original plan for the area which was for commercial development and did not include any mixed-use development. Dick Elmer, resident of Porters Neck, voiced his concern about the proposed project and the traffic impact. In rebuttal comments, Attorney Nichols stated that the Developer has done what he said he was going to do and the proposed project will not be a negative for this area or to the commercial development. The proposed plan will significantly reduce traffic counts than what can be done by-right under the current B-1 zoning. In rebuttal comments concerning the feasibility of the extension of Plantation Road, Mr. Shepherd reported that the Plantation Road stub could be extended in the future but was not currently supported by the Army Corps of Engineers and is not included in the Petitioner’s proposed plan. The biggest issue faced in connection is the wetlands that are there, no wetlands are disturbed in the current proposal. In rebuttal comments, Mr. Overcash reported that they worked extensively with the residents during the previous rezoning request and devised a road plan which included widening the intersection to as many lanes as was possible. In the morning travel hours there will be less of a reduction than in the evening travel hours; 25% reduction in the morning and 60% reduction in the evening, from the original commercial use. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 37 In response to rebuttal comments, Ms. Bauereis stated her concern that a comprehensive plan for the entire area was not being considered stating that she prefers the commercial development and does not want the additional apartments. Hearing no further comments, Chairman White closed the Public Hearing and requested direction from the Board. In response to questions by Vice-Chair Dawson to staff concerning whether they had received the properly certified engineering documents as required by the North Carolina Licensing Law for Engineers from the Petitioner, Mr. Andrea responded that it was his understanding that the documents included in the Board packet were all the documents that have been received. If the seals were not properly included on those documents then that is all that has been received, confirming that there has not been any updated information provided by the Petitioner to the Planning Staff. In response to the question by Vice-Chair Dawson, Mr. Shepherd responded that the site plans in the agenda packet are concept plans. The actual engineer construction drawings for the site developments, storm water, sewer and infrastructure which has already been built, were prepared years ago, and were stamped and sealed. The normal process is that final plans will follow once the project has received approval. The concept plans are not stamped and sealed. The Traffic Impact Analysis report is stamped and sealed because it is the final traffic engineer’s report. Vice-Chair Dawson voiced her concern that the plans in the agenda packet are not complete as they are not sealed or signed and are the only plans the Board has to review to make a final decision for a special use permit. If the documents are prepared by a licensed professional, those documents must adhere to the state laws that regulate that profession and be properly certified and sealed with the appropriate signatures and/or the plans must be marked properly as preliminary. She suggested the County Attorney or the Petitioner refer to the North Carolina Board of Examiners for Engineers and Land Surveyors for any further questions. She offered to work with staff to clarify the requirements and to ensure complete applications are brought to the Board in the future. Motion: Vice-Chair Dawson MOVED to table the special use permit request with direction to staff to work with the Petitioner to bring forward a complete application that contains the proper certification of each and every opinion drawing, anything prepared by a licensed engineer, for Board review and consideration at a future date. In response, Mr. Shepherd stated that he is very familiar with the licensing rules and the documents that are required to be certified are the ones that are submitted for construction drawings, either final drawings for review or those ready for construction. The plans in the agenda packet are clearly marked “concept” which is allowed by the licensing board. It would not be proper if they had been stamped and sealed. When the plans are finalized after approval, they will be appropriately stamped. The only final work by an engineer in the packet is the Traffic Impact Analysis report, and it has been signed and sealed. In response, Commissioner Barfield stated that he could not support the motion because it would mean that every Board decision made prior to the precedent of sealed documents would be in error. Chairman White advised the Petitioner that if the special use permit request is denied it may only be resubmitted at the discretion of the Planning Director, he asked Mr. Nichols if they wished to proceed or continue the matter. Mr. Nichols responded that due to the concerns raised by Vice-Chair Dawson that need to be addressed, he confirmed that they would like to continue the request. After brief discussion about the Board calendar, the consensus of the Board is to grant the request of the Petitioner and continue the consideration of the special use permit request until the Board’s June 16, 2014 meeting. Chairman White offered comments about his personal observance of the traffic issues in the area and suggested more conversation about the issue when the Board hears the item in June. In response to Vice-Chair Dawson’s comments, County Manager Chris Coudriet stated that the Board’s process is governed by New Hanover County Ordinances and not by State standards for professional licenses. Staff does not review the packets submitted by the Petitioners to ensure their compliance with State regulations. He asked that before the Board adds additional requirements on the development community that they fully understand any cost implication of those decisions such as applying a sealed stamp to a concept plan and the associated consequences of that as opposed to issuing a concept plan. Any change the Board wishes to make would need to be done through the Ordinance, similar to what is being done with the Special Use Permit process where the staff has embedded a checklist of items. Staff continues to work consistent with the County’s current Ordinance. In response to Mr. Coudriet’s comments, Vice-Chair Dawson stated that the laws of the State of North Carolina do apply to the way that the Board governs in the County and it is inherent for staff to ensure that the laws are being followed on any documentation that is submitted. The potential changes to the Special Use Permit process may have the County relying more on Federal and State regulations making it even more important to ensure compliance with State laws and ensuring that people doing business with the County are following the letter of the law. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 38 BREAK Chairman White called for a break from 7:32 p.m. until 7:49 p.m. PUBLIC HEARING AND APPROVAL TO AMEND ARTICLE II SECTION 23: DEFINITIONS; SECTION 61.4: TRAFFIC IMPACT ANALYSIS; SECTION 121.1 AND SECTION 121.3 FILING AND NOTICE FOR AN APPEAL; AND SECTION 122: POWERS AND DUTIES OF THE ZONING BOARD OF ADJUSTMENT OF THE NEW HANOVER COUNTY ORDINANCE (A-418, 2/14) Chairman White opened the Public Hearing and requested staff to make the presentation. Current Planning and Zoning Supervisor Kenneth Vafier presented the request by staff to amend the following sections of Article II of the New Hanover County Ordinance to address inconsistencies as a result of legislation passed during the 2013 North Carolina Legislative Session: Article II, Section 23: Definitions: Fraternities/Sororities Residential - A building or structure occupied and maintained for residential uses exclusively for college or university students who are members of a social, honorary, or professional organization which is chartered by a national, fraternal or sororal order. which is so recognized by a university, college or other institution. (6/18/90) (23-93) Section 61.4: Traffic Impact Analysis: Appeals – Within 10 30 working days of a decision on required mitigation measures, an applicant may appeal the decision through the Board of Adjustment in the form of a letter stating the reasons for appeal and including documentation in support of the appeal. In hearing disputes, the Board of Adjustment may request an independent study by an outside source, chosen by the County and paid for by the applicant, to resolve questions of traffic impact and appropriate mitigation thereof. Section 121: Filing and Notice for an Appeal: 121-1: Appeals from the enforcement and interpretation of this Ordinance and appeals for variances may be taken to the Board of Adjustment by any person aggrieved or by any office, department, board or bureau of the County affected. Notice of an appeal to the Board of Adjustment shall be filed with the zoning administrator within thirty (30) days of receipt of the decision. An appeal stays all proceedings in furtherance of action appealed from, unless the zoning administrator files a Certificate stating that by reasons of facts stated in the Certificate a stay would, in his opinion, interfere with enforcement of the Ordinance because the violation is transitory in nature, or would cause imminent peril to life and property. The zoning administrator shall have one (l) copy of said certificate delivered by registered mail or by personal service to the appellant and to each member of the Board within ten (10) calendar days from the date the appeal is filed with the zoning administrator. The Certificate shall also be placed on file in the Office of the zoning administrator for public inspection and recorded in the minutes of the next meeting of the Board. Where said Certificate is filed by the zoning administrator, proceedings in furtherance of the original order shall not be stayed otherwise than by restraining order which may be granted by a court of record within New Hanover County. Section 121: Filing and Notice for an Appeal: 121-3: Notice - At least one (1) week prior to the date of the hearing, the zoning administrator shall furnish the appellant and all property owners of the subject tract and property owners within 500 feet of the subject tract with written notice of the hearing. All tenants of the subject tract and parcels within 500 feet of the subject tract will be notified where practicable. (11/13/12) Notice of Public Hearing shall be published once a week for two (2) successive calendar weeks in the local newspaper. Public notice may shall also be posted on the property concerned indicating the proposed change and date of public hearing Section 122: Powers and Duties of the Zoning Board of Adjustment: 122-1: The Zoning Board of Adjustment shall have the following powers and duties: (1) To hear and decide appeals where it is alleged by the appellant that there is error in any decision made by the zoning administrator or other administrative officials in the carrying out or enforcement of any provision of the Ordinance. A concurring vote of four-fifths (4/5) majority of the members of the Board shall be necessary to reverse, wholly or partly, any such decision. Vacant seats and disqualified members are not considered in calculating 4/5 votes majority. COUNTY OF NEW HANOVER, NORTH CAROLINA ORDER GRANTING / DENYING A VARIANCE The Board of Adjustment for the County of New Hanover, having held a public hearing on (date) to consider application number, submitted by (name of applicant), a request for a variance to use the property located at (address of property) in a manner not permissible under the literal terms of the ordinance, and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board's CONCLUSION that, if the applicant complies with the literal terms of the ordinance, specifically section(s), _______________________ he (can/cannot) secure a reasonable return from, or make reasonable use of, his property. This conclusion is based on the following FINDINGS OF FACT: NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 33 REGULAR MEETING, MARCH 10, 2014 PAGE 39 Hearing no further questions, Chairman White reported that no one had signed up to speak in favor of or in opposition to the request, closed the Public Hearing, and requested direction from the Board. Motion: Commissioner Wolfe MOVED, SECONDED by Commissioner Barfield, to amend Article II, Section 23: Definitions; Section 61.4 Traffic Impact Analysis; Section 121-1 and 3: Filing and Notice for an Appeal; and Section 122: Powers and Duties of the Zoning Board of Adjustment of the New Hanover County Ordinance as presented to address inconsistencies as a result of legislation passed during the 2013 session finding that the request is: 1) consistent with the Land Use Plan; and 2) reasonable and in the public interest. Upon vote, the MOTION CARRIED 4 TO 0. A copy of the ordinance amending the Zoning Ordinance is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.6. ADOPTION OF ORDINANCE ALIGNING THE NEW HANOVER COUNTY CODE WITH THE NORTH CAROLINA GENERAL STATUTE AND ACKNOWLEDGEMENT OF MANDATORY FEE CHANGE IN THE AMOUNT OF $75 FOR LIMITED FOOD SERVICE ESTABLISHMENTS Strategy and Policy Manager Beth Schrader provided an overview of proposed amendments required to bring New Hanover County into alignment with changes to the General Statutes as follows:  Parks: effective October 1, 2013, North Carolina General Statute 14-415.23, clarified the locations where a unit of local government may prohibit the carrying of a concealed handgun by posting appropriate notice. Specifically the law excludes playgrounds and greenways, and limits the ability to prohibit carrying a concealed weapon on an athletic field to only include during events. The proposed amendment to Chapter 41, Parks and Recreation, Section 41-1, Prohibited Activities, Section 19 changes the existing language to conform to the new language in the State law.  Fee Schedule Change: adds a mandatory fee of $75 to be collected by counties for Limited Food Service Establishments. The Health Director is authorized to approve any fee changes that do not exceed $5,000 with the estimated maximum total annual revenue from this new fee to be in the amount of $1,875. The change was reported to the Board of Health at its January 2014 meeting. After a brief question and answer period, hearing no further comments, Chairman White requested direction from the Board. Motion: Commissioner Barfield MOVED, SECONDED by Commissioner Wolfe, to adopt the Ordinance aligning the New Hanover County Code, Chapter 41, Parks and Recreation, Section 41-1 Prohibited Activities, Section 19 as presented and acknowledgment of the mandatory fee change in the amount of $75 for Limited Food Service Establishments. Upon vote, the MOTION CARRIED 4 TO 0. A copy of the ordinance amending Chapter 41, Parks and Recreation, of the New Hanover County Code of Ordinances is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXXVIII, Page 5.7 and will be codified into the New Hanover County Code of Ordinances. PUBLIC COMMENTS ON NON-AGENDA ITEMS Chairman White reported that no one had signed up to speak on non-agenda items. ONE SOLUTION SOFTWARE LAUNCH UPDATE Planning and Inspections Director Chris O’Keefe provided an update on the launch of the One Solution software program. The system went live on March 3, 2014. Although the change is tremendous and there are growing pains, the launch was successful. The permitting module is up and operating and staff is now working with other agencies that will also be contributing and signing off in the new system including the Health Department, Fire Services, Engineering and the City of Wilmington. Information Technology is working with the vendor to address the slow speed of the software. The one outstanding issue to address is the change from the old multi-fee structure to the current one-fee structure; currently there are approximately 4,000 permits that existed prior to the change in the fee structure and staff has to process each one of those payments individually on a software system that’s created to process the one-fee system; those numbers will decrease as projects are completed and staff works through them. ADJOURNMENT Hearing no further business, Chairman White adjourned the meeting at 8:03 p.m. Respectfully submitted, Sheila L. Schult 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 and on-line at www.nhcgov.com.