Loading...
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 S-632 (8/16) Page 2 of 9 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. S-632 (8/16) Page 3 of 9 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 S-632 (8/16) Page 4 of 9 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. S-632 (8/16) Page 5 of 9 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. S-632 (8/16) Page 6 of 9 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 S-632 (8/16) Page 7 of 9 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. S-632 (8/16) Page 8 of 9 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. S-632 (8/16) Page 9 of 9 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.