S-632 Staff Summary BOCS-632 (8/16) Page 1 of 9
SPECIAL USE PERMIT APPLICATION
CASE: S-632
PETITIONER: Cindee Wolf, Design Solutions
REQUEST: Special Use Permit to develop/expand a high intensity mining operation in an
I-2, Heavy Industrial district
ACREAGE: 80.4 acres
LOCATION: 200 block of Sutton Lake Road
PID: R02400-001-001-000
2006 CAMA LAND CLASS: Natural Heritage Resource Protection
2016 COMPREHENSIVE LAND USE PLAN PLACE TYPE: Commerce
PLANNING BOARD ACTION:
The application was heard by the Planning Board at their August 4, 2016 meeting. At the meeting, eight
people spoke in opposition to the application, including representatives from the North Carolina Coastal
Federation, Cape Fear River Watch, and Coastal Plain Conservation Group. Concerns were presented
regarding the potential impacts that the mine may have on the surrounding environment, including
possible contamination of the PeeDee aquifer and area wells from the surrounding industrial uses, and
loss of rare and protected animal and plant species. Other concerns included the loss of usable and
taxable land that would be removed with the proposed mine.
The Planning Board had concerns regarding certain reports presented by the applicant at the meeting,
particularly the amount of time they and the public had to review them. Ultimately, the Board
recommended (5-1) approval of the application, but added conditions intended to allow the public to
have additional input on the proposal. The conditions added were:
1. The County shall be provided with any reports prepared by the applicant regarding the mining
operation’s impact on the surrounding environment.
2. Prior to the application being heard by the Board of Commissioners, the applicant shall hold a
community meeting to discuss the application with interested parties.
The applicant has currently complied with these conditions. A Phase I Environmental Site Assessment and
a Limited Phase II Environmental Site Assessment conducted for the subject site were provided to staff.
The assessments and other application materials were posted to the County’s website
(http://tiny.cc/S632) and a notification of the webpage was sent to the Planning Department’s Sunshine
List. The applicant has also scheduled a community information meeting for August 29th to discuss the
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application with interested parties. Notification of that meeting was also sent to the Planning
Department’s Sunshine List.
Further, the applicant updated the site plan/proposal since the Planning Board meeting due to the
concerns presented at the meeting. The applicant is now proposing to utilize wet mining techniques, with
no dewatering of the groundwater occurring. Because of this, the operation is not subject to a 100 foot
setback the Zoning Ordinance requires for mining operations that dewater.
EXISTING CONDITIONS:
Existing Zoning and Land Uses
The site and surrounding area is zoned I-2, Heavy Industrial. The 421 corridor was zoned I-2 when zoning
was originally applied to this area in 1971. There are many existing industrial uses in the area including
the Duke Energy Sutton Steam Plant, S.T. Wooten Asphalt Plant, and Ticona/Fortron Industries.
Adjoining the property to the south is an existing mining operation, which this application proposes to
expand. That mining operation was originally permitted in 2006 and was later expanded in 2012 under
the County’s nonconforming standards. To the east, the property abuts the Seaboard Coastline railroad.
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Existing Site Conditions
The subject property includes an 80.4 acre portion of 1,044 acre parcel, which includes a large industrial
development (Ticona/Fortron Industries) on the east side of Highway 421. The property is currently
undeveloped and has two 100 foot wide Duke Power easements crossing it.
Conservation, Historic, and Archaeological Resources
The subject property has been identified as a Significant Natural Heritage Area, 421 Sand Ridge, by the NC
Natural Heritage Program. The applicant provided an environmental report, prepared by WithersRavenel,
on the mining operation’s impact on the Natural Heritage Area. The report examined the property for
seven animal species and eleven plant species which are either protected by the Federal or State
governments, or is listed a rare species in the County’s Natural Area Inventory. The report found that of
the listed species, two animal species (Northern Long-Eared Bat and Southern Hognose Snake) may be
affected by the mining operation, but are not likely to be adversely affected, and therefore no specific
protection strategies are warranted.
STAFF POSITION:
Zoning Ordinance Considerations
The I-2, Heavy Industrial, district provides areas for a full range of manufacturing, fabrication, assembly,
warehousing, and distribution uses associated with heavy industrial land uses where heavy industry can
find suitable sites served by rail, waterway and highway transportation. The district also seeks to protect
non-industrial uses located outside the district and to minimize environmental impacts caused by the uses
within the district.
Conceptual Site Plan
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A conceptual site plan is included as part of the application. If this application is approved, the property
must be developed in accordance with the site plan. Further, the proposed development must also go
through the County’s building permit/site plan review process. As currently shown, the site plan complies
with the standards of the Zoning Ordinance, include the specific use standards for high intensity mining
operations.
The site plan has been updated since the Planning Board meeting due to the concerns presented at the
meeting. The applicant is now proposing to utilize wet mining techniques, with no dewatering of the
groundwater occurring. Because of this, the operation is not subject to a 100 foot setback the Zoning
Ordinance requires for mining operations that dewater.
Traffic
The applicant has stated the purpose of the mine is to serve the adjacent and existing asphalt plant, and
for filling a Duke Power coal ash pond; therefore the applicant expects that the traffic will not exceed the
amounts currently generated by the existing mining operation. The mining operation anticipates a
maximum of 60-80 trucks to be loaded over the course of an 8 to 12 hour day (seasonal daylight). Further,
the actual mining process will require less than six employees working within the project boundaries at
any time. As the operation will not generate 100 peak hour trips, a Traffic Impact Analysis (TIA) was not
completed for the proposed use.
In 2015, the Wilmington Metropolitan Planning Organization conducted a traffic count at the 2900 block
of Highway 421, south of the proposed mine between Sutton Steam Plant Road and Fleming Street. The
count found a daily trip volume of 24,543. The Highway has a capacity of 59,800 trips which equates to a
Level of Service (LOS) of “B” when using the volume to capacity ratio.
Environmental
As previously mentioned, the property is located within a Significant Natural Heritage Area and does
contain habitat of protected and rare species. An environmental report provided by the applicant
concluded that the proposed mining operation is not likely to adversely affect any protected or rare
species and does not recommended any specific protection strategies. The environmental report also
found that there are no regulated wetlands within the property.
The applicant also conducted a Phase I Environmental Site Assessment and a Limited Phase II
Environmental Site Assessment of the subject site. The Phase I ESA identified recognized environmental
conditions (RECs) in connection with the subject property. The purpose of the Limited Phase II ESA was
to investigate possible groundwater impact on the property by the nearby RECs. The Phase II assessment
concluded that “it does not appear that surficial aquifer groundwater beneath the subject property has
been adversely affected by potential off-site sources of contamination. Additionally, it does not appear
that the constituents detected at concentrations above their 2L Standards would pose an unacceptable
health and safety risk to workers associated with the proposed sand mine expansion.”
All application materials, including the noted assessments, can be found on the County’s website at:
http://tiny.cc/S632. Please note that the appendix to the Phase I ESA is not included in the Board of
Commissioner’s packet due to the size of the document (1,600+ pages). It is however available at the
linked website.
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The property does not contain any Special Flood Hazard Areas. Based on the Soil Survey of New Hanover
County, the soils on the property are Lakeland Sand (Class I), Rimini Sand (Class I), Kureb Sand (Class I),
and Leon Sand (Class III).
2006 CAMA Land Use Plan Considerations
The property is classified as Natural Heritage Resource Protection by the 2006 CAMA Land Use Plan. This
class is located predominantly in the northwest corner of the County with small segments scattered
elsewhere. These are areas identified by the North Carolina Natural Heritage Program as generally unique
habitats that warrant special attention and protection. The threat to these areas is loss of habitat or
fragmentation of habitat that may be crucial to a particular natural community identified as important.
The focus of strategies for this subclass is to better identify these areas and develop specific protection
strategies.
The applicant provided an environmental report, prepared by WithersRavenel, on the mining operation’s
impact on the Natural Heritage Area. The report examined the property for seven animal species and
eleven plant species which are either protected by the Federal or State governments, or is listed a rare
species in the County’s Natural Area Inventory. The report found that of the listed species, two animal
species (Northern Long-Eared Bat and Southern Hognose Snake) may be affected by the mining operation,
but are not likely to be adversely affected, and therefore no specific protection strategies are warranted.
Therefore, staff concludes that the proposed mining operation is consistent with the 2006 CAMA Land
Use Plan.
2016 Comprehensive Land Use Plan Considerations
The property is classified as Commerce Zone by the 2016 Comprehensive Land Use Plan. These areas
serve as employment and production hubs, predominantly composed of light and heavy industrial uses,
though office and complementary commercial uses are also allowed. Densities are dependent in part of
the type of industry; some industrial uses will likely be one story with large setbacks and ample room for
trucks and other large vehicles. Offices uses can be multi-story and nearer the street, while office buildings
can be two or three stories and closer to the street. Commerce Zones, unlike Employment Centers, do not
allow residential uses. Commerce Zones require arterial or major collector road access connecting them
to outside their boundaries.
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Relevant Goals, Strategies and Guidelines of the Comprehensive Plan:
Goal I: Promote a strong diverse economy and high quality growth. (Desired Outcome: A vibrant economy
for New Hanover County based on business success.)
Guideline
I.A.1. Encourage target industries in Employment Centers, Commerce Zones, and Growth
Nodes.
Goal IX: Promote environmentally responsible growth. (Desired Outcome: Development that
accommodates population growth while minimizing negative impacts on natural resources.)
The proposed application is consistent with the future land use map and meets the intent of the
Commerce Zone place type. Heavy industrial uses, including high intensity mining operations, are
appropriate within this place type.
GENERAL INFORMATION REGARDING SPECIAL USE PERMITS:
Special use permits add flexibility to the Zoning Ordinance. Subject to high standards of planning and
design, certain property uses may be allowed in the several districts where these uses would not
otherwise be acceptable. By means of controls exercised through the special use permit procedures,
property uses which would otherwise be undesirable in certain districts can be developed to minimize any
bad effects they might have on surrounding properties.
Any use or development designated by applicable zoning district regulations as a special use, or as allowed
only pursuant to a special use permit, may be established in that district only after the use or development
is authorized by a validly issued special use permit.
The applicant bears the burden of presenting sufficient evidence in support of the application to allow the
Board of Commissioners, after weighing such evidence against that presented in opposition to the
application, to make findings of fact that reasonably support each of the required conclusions. If that
burden is met, the Board of Commissioners should approve the application. If that burden is not met, the
Board of Commissioners should deny the application, provided that if the Board determines that specific
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minor changes or additions to, or restrictions on, the proposed development are necessary and sufficient
to overcome impediments to its reaching the required conclusions, it may approve the application subject
to reasonable conditions requiring such changes or additions or imposing such restrictions. Such
conditions may include time limits for completion of development or for the start or end of certain uses
or activities.
The Board of Commissioners may continue the hearing to a later meeting to accommodate additional
witnesses or the presentation of additional testimony or evidence. If the time and place of the continued
hearing is announced in open session during the hearing, no further notice need be given for the
continued hearing.
A motion to approve the application must state the required conclusions and include findings of fact on
which the conclusions are based, plus any proposed conditions of approval. The favorable vote of the
majority of the Board present is necessary to pass such a motion. A motion to deny the application must
state which of the required conclusions cannot be reached and include findings of fact on which the
inability to reach the conclusions is based. The favorable vote of a majority of the Board present is
necessary to pass such a motion.
STAFF PRELIMINARY CONCLUSIONS AND FINDINGS OF FACT:
Staff has conducted an analysis of the proposed use and the information provided as part of the
application package, in addition to supplemental information provided by the applicant and presented at
the August 4, 2016 public hearing at the Planning Board, and has created preliminary findings of fact to
support each of the conclusions required to be reached to approve the special use permit request. These
preliminary findings of fact and conclusions are based solely on the information provided to date, prior to
any information or testimony in support or opposition to the request that may be presented at the
upcoming public hearing at the September 6, 2016 Board of Commissioners meeting.
Finding 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.
A. The mining operation must obtain a mining permit from the State which includes review by
several state and federal agencies including the U.S. Fish & Wildlife Service, Wildlife Resource
Commission, and the Divisions of Air Quality and Water Quality within the N.C. Department of
Environmental Quality.
B. A Limited Phase II Environmental Site Assessment, prepared by WithersRavenel, concluded that
it does not appear that surficial aquifer groundwater beneath the subject property has been
adversely affected by potential off-site sources of contamination, and that it does not appear that
the constituents detected would pose an unacceptable health and safety risk to workers
associated with the proposed sand mine expansion.
C. The subject property is located in the New Hanover County North Fire Service District.
D. Access to the site will be provided by a two 20 foot haul roads which connect to Sutton Lake Road
(SR 2145) and Highway 421.
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Staff Suggestion: Evidence in the record at this time supports a finding that the use will not materially
endanger the public health or safety where proposed.
Finding 2: The Board must find that the use meets all required conditions and specifications of the
Zoning Ordinance.
A. High intensity mining is allowed by Special Use Permit in the I-2 zoning district.
B. The site and proposed location of the high intensity mining operation complies with the
requirements of the I-2 zoning district and the specific use standards for high intensity mining
operations listed in Section 72-42.
Staff Suggestion: Evidence in the record at this time supports a finding that the use meets all of the
required conditions and specifications of the Zoning Ordinance.
Finding 3: The Board must find that the use will not substantially injure the value of adjoining or
abutting property or that the use is a public necessity.
A. The proposed high intensity mine is expanding an existing mining operation.
B. The surrounding area is zoned I-2, Heavy Industrial, a district that allows for high intensity and
heavy industrial uses.
C. No evidence has been submitted that this project will decrease the property values of adjacent or
nearby properties.
Staff Suggestion: The evidence in the record at this time supports a finding that the use will not
substantially injure the value of adjoining or abutting property.
Finding 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 Wilmington-New Hanover County CAMA Land Use Plan classifies the area proposed for
the high intensity mining operation as Natural Heritage Area, which identifies areas as generally
unique habitats that warrant special attention and protection. The focus of this classification is
to better identify and develop specific protection strategies that help reduce the loss the habitat
or fragmentation of habitat that may be crucial to a particular natural community identified as
important.
B. An environmental report, prepared by WithersRavenel, found that animal or plant species which
are either protected by the Federal or State governments, or are identified as a rare species in the
County’s Natural Area Inventory, are not likely to be adversely impacted by the proposed mining
operation.
C. The property is classified as Commerce Zone by the 2016 Comprehensive Land Use Plan. These
areas serve as employment and production hubs, predominantly composed of light and heavy
industrial uses. High intensity mining operations are appropriate within the Commerce Zone.
Staff Suggestion: Evidence in the record at this time does support a finding that the use is general
conformity with the plan of development for New Hanover County.
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ACTION NEEDED (Choose one):
1. Motion to approve (with or without conditions)
2. Motion to table the item in order to receive additional information or documentation
(Specify).
3. Motion to deny based on specific findings in any of the 4 categories above, such as lack of
consistency with adopted plans or determination that the project will pose public hazards or
will not adequately meet requirements of the ordinance.
Example Motion for Approval:
Motion to approve, as the Board of Commissioners find that this application for a Special Use Permit to
develop a high intensity mining operation:
1. Will not materially endanger the public health or safety;
2. Meets all required conditions and specifications of the Zoning Ordinance;
3. Will not substantially injure the value of adjoining or abutting property; and
4. Will be in harmony with the surrounding area, and is in general conformity of the plans of
development for New Hanover County.
Staff suggested condition(s):
1. A 20 foot wide access easement shall be dedicated to the County along the eastern property line,
which abuts the Seaboard Coastline Railroad right-of-way, for the purposes of installing a future
pedestrian facility in accordance with the Wilmington/New Hanover County Greenway Plan.
Example Motion for Denial:
Motion to deny, as the Board of Commissioners cannot find that this application for a Special Use Permit
to develop a high intensity mining operation:
[State the finding(s) that the application does not meet and include reasons to why it is not being met]
1. Will not materially endanger the public health or safety;
2. Meets all required conditions and specifications of the Zoning Ordinance;
3. Will not substantially injure the value of adjoining or abutting property;
4. Will be in harmony with the surrounding area, and is in general conformity of the plans of
development for New Hanover County.