2017-04 April 6 2017 PBM
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Minutes of the
New Hanover County Planning Board
April 6, 2017
The New Hanover County Planning Board met Thursday, April 6, 2017 at 6:00 p.m. in the
Assembly Room of the New Hanover County Historic Courthouse, Wilmington, NC to hold a
public meeting.
Planning Board Present: Staff Present:
Donna Girardot, Chairman Ken Vafier, Planning Manager
Ernest Olds, Vice Chairman Ben Andrea, Current Planning & Zoning Supervisor
Paul Boney Brad Schuler, Current Planner
Allen Pope Sharon Huffman, Deputy County Attorney
Jordy Rawl
Edward “Ted” Shipley, III
David Weaver
Chairman Donna Girardot opened the meeting and welcomed the audience to the public
hearing.
Ken Vafier led the reciting of the Pledge of Allegiance.
Chairman Donna Girardot reviewed the procedures for the meeting.
Item 1: Rezoning Request (Z17-02) – Request by Joseph O. Taylor, Jr., Bryan Hamby, and
Frank Braxton on behalf of the property owner, Holdings of TCM, Inc., to rezone 13.98 acres
located at the 120 block of Battleship Road, from B-2, Highway Business District, to (CZD)
R-10, Conditional Residential District, in order to develop a 15 lot conventional residential
subdivision.
Joseph Taylor, attorney for the applicants, stated on behalf of the applicants, he would
respectfully request a sixty-day continuance to the June 1, 2017 Planning Board meeting in order
to answer questions and concerns that had arisen about the property. He explained that although
they have done ground penetration radar studies and studies offshore, they have commissioned an
archaeological study to be done on the entire property, both land and water, which will take
approximately sixty days to complete. Mr. Taylor said they feel it is very important to have that
information before they appear before the planning board. During that period of time, they will
spend substantial time with staff understanding their position as they put this project forth to the
board. The continuance will also give the applicants time to talk to their neighbors about various
other alternatives.
Chairman Girardot entertained a motion on the continuance request.
Motion: Jordy Rawl MOVED, SECONDED by Vice Chair Ernest Olds, to grant a
continuance of Zoning Amendment Request Z17-02 for sixty days or to the June 1, 2017 Planning
Board meeting.
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During discussion, Deputy County Attorney Sharon Huffman said it would be appropriate
for the chairman to provide anyone present in opposition to the proposal with the opportunity to
speak on the request to continue the item.
Chairman Girardot asked if anyone present would like to speak in regard to the request for
the continuance. Hearing none, Chairman Girardot called for a vote on the motion.
Upon vote, the MOTION PASSED 7-0.
Item 2: Special Use Permit Request (S17-02) – Request by Design Solutions on behalf of the
property owner, Yosef, Inc., for a Special Use Permit in order to develop a convenience food
store on 1.78 acres of land located at the 7900 block of Market Street.
Witnesses were sworn in by Deputy County Attorney Sharon Huffman.
Current Planner Brad Schuler provided information pertaining to location, land
classification, access, level of service and zoning; and showed maps, aerials, and photographs of
the property and the surrounding area. Mr. Schuler provided the following staff report:
This is an application for a special use permit in order to develop a convenience food store
containing gas sales. The subject property is currently zoned Office and Institutional and consists
of approximately 1.8 acres. To the north, the land is also zoned O&I that contains a church and a
bank. Across Market Street is land zoned B-2. Currently, a grocery store is being built at the
corner of Market Street and Marsh Oaks Drive. Across the street is the Amberleigh Shores
apartment complex, which has been annexed into the City of Wilmington, and single-family
residential housing is located to the south and west. While the property has direct frontage on
Market Street, it is currently accessed by Bump Along Road, which is a private road. Raintree
Road also stubs into the property from the south. Raintree Road is a state-maintained road with
the maintenance ending at the property line with the subject property. The property is currently a
mostly wooded tract of land. A dirt path has been established on the property, which has allowed
motorists to cut through the property to get to Market Street and Raintree Road. There are
regulated wetlands on the property and the applicant does plan to obtain the applicable permits
from the US Army Corps of Engineers in order to fill in those wetlands.
The site plan proposes to develop a 4,500 square foot convenience food store with 16 fuel
pumps and a car wash. The development will generate 189 trips in the AM peak and 222 trips in
the PM peak; therefore, a TIA has been completed for the proposed development, which is
currently being reviewed by the Wilmington Metropolitan Planning Organization (WMPO) and
the NC Department of Transportation (NCDOT). The TIA examined two site plan alternatives for
the proposed development, one with a two-way connection to Raintree Road, and one without a
connection to Raintree Road. Overall, the TIA found that the intersections studied will operate at
a Level of Service (LOS) of “D” or better in both the AM and PM peaks with the recommended
improvements. Those improvements include the installation of a southbound right turn lane into
the subject property. As currently shown, the development will make a vehicular connection to
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Raintree Road; however, it is limited to a one-way, entrance only connection so a nearby resident
could enter the site from Raintree Road, but would have to exit onto Market Street. Staff is
recommending a condition be added that would require a two-way connection to Raintree Road.
Based on the TIA, only 5% of the trips expected to be generated from the proposed development
will utilize Raintree Road for access. This equates to 9 trips in the AM peak, 11 trips in the PM
peak, and 122 trips over a 24-hour period. Also, there is a NCDOT project planned that will install
a median along this portion of Market Street. This median will prevent any left turns out from
Alexander Road; therefore, there would be no benefit for motorists traveling along Market Street,
who stop at the store to utilize that connection to exit the property. They would most likely use
Bump Along Road, which is the most direct exit onto Market Street. Interconnectivity is an
important development standard in the county, and this connection will provide two main benefits.
First, it will allow for better emergency access. For example, when emergency services need to
get to the nearby R-15 residential area, a two-way connection would allow them to cut through the
property and get to the emergency sooner. Second, interconnectivity gives residents more options
to get from point A to point B, and providing more options helps reduce the amount of traffic on
our arterial streets. Without interconnectivity, everybody would be forced to travel on a handful
of roads, which creates traffic and congestion. In this situation, the two-way connection will allow
nearby residents to get to and from the store without ever getting on Market Street. Overall, it will
be a better development pattern for the county.
The site plan also shows the installation of a sidewalk, which will connect Raintree Road
to a future sidewalk that will be installed along Market Street in conjunction with the Market Street
median project. For that reason, staff is recommending a condition that would require four bicycle
parking spaces be included on the property. The applicant has updated the site plan to illustrate
the location of those bicycle parking spaces, which is near the car wash.
The 2016 Comprehensive Plan classifies the subject property as Community Mixed Use.
This place type focuses on small-scale, compact, mixed use development patterns that serve all
modes of travel and act as an attractor for county residents and visitors. In general, the proposed
development is consistent with the goals of the 2016 Comprehensive Plan, as it will provide an
appropriate commercial service to nearby residents and travelers along Market Street and a
pedestrian access for nearby residents. However, the one-way drive does not maximize the
benefits of connectivity that are promoted in the comprehensive plan. Staff has conducted an
analysis of the proposed use and the information provided as part of the application package and
has created preliminary findings of fact for each of the conclusions required to be reached to
approve the special use permit request. Those preliminary findings of fact are detailed in the staff
summary. Staff is also recommending five conditions be added to the development:
1. Improvements required in the traffic impact analysis be installed prior to the issuance
of a certificate of occupancy.
2. A two-way vehicular connection must be made to Raintree Road and extend to Bump
Along Road. This vehicular travelway must comply with the county’s construction
standards for private roads and must be included within a 30-foot access easement that
is dedicated for public use. (Staff feels this condition will provide for better safety for
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the area's residents by reducing emergency response time and reducing traffic on
market street).
3. The portion of Bump Along Road adjoining this subject property also be dedicated for
public use, either by dedicating an easement or a right-of-way.
4. A 20-foot access easement be dedicated to the county for the purpose of installing a
future multi-use path or sidewalk in accordance with the Wilmington-New Hanover
County Greenway Plan.
5. The development must include bicycle parking facilities consisting of, at minimum, 4
bicycle parking spaces.
Mr. Schuler concluded the presentation and offered to answer questions from board
members.
Chairman Girardot inquired if board members had any questions for staff.
Board member Jordy Rawl asked Mr. Schuler to clarify the specific proposal, noting one
exhibit included some additional retail in the back of the property that was not included on the
engineered site plan. Mr. Schuler explained that the site plan showing additional retail was a plan
included at a community meeting held in August 2016. At one point, the applicant was looking at
that proposal, which would have required a rezoning, hence a community meeting was required.
The applicant included the notes to that community meeting in this application package, which
included that site plan. Mr. Schuler clarified that the site plan with additional retail was not under
consideration by the planning board as part of the current rezoning proposal.
In response to an inquiry by Chairman Girardot, Brad Schuler confirmed that Bump Along
Road is a paved road, but is not very wide. The applicant will need to make improvements to Bump
Along Road in accordance with their driveway permit. It is very narrow and only one car can fit
on it currently. In response to an inquiry by Board Member David Weaver, Mr. Schuler confirmed
that Raintree Road is a state road and is maintained by the State up to the property line.
Chairman Girardot opened the public hearing and recognized the applicant.
Cindee Wolf stated she and Attorney Patricia Jenkins were present to represent the
applicant, Yosef, Inc., which is also the owner of the property. Ms. Wolf provided some
background on the proposal. She provided an exhibit of Bump Along Road, noting that in the
1930s and 1940s, the entire tract was Tract A of a division called the Bell Division. Over the course
of many years, the Bells sold all of the tracts shown as red dots and the two shown as yellow dots
by legal description, not by a recorded plat, and in essence, every one of those legal descriptions
defined the edges off each lot and exempted what is Bump Along Road. After doing the research
on the title, etc., it has been determined that Ms. Jere LeGwin, who owns a tract in the back, still
owns the fee simple title to what is known as Bump Along Road. There was another very similar
piece of property shown on the old GIS maps. Several months ago, the applicant purchased by
deed that fee simple land that was also still in Ms. LeGwin’s name and the new GIS maps are in
compliance with the most recent record plat, which eliminates what was shown as an access
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easement over to Raintree Road. Ms. Wolf explained that Bump Along Road is not a right-of-way;
it is a private access easement for the purpose of everyone along it.
Ms. Wolf reported that the applicant is currently working with Ms. LeGwin to obtain a
legal agreement for her client, who owns the subject tract and the tract behind it, which is zoned
O&I, Office and Institutional, and at some point in time might avail itself to whatever uses would
be appropriate to be developed there. The applicant would have a legal agreement for the
commissioners' meeting that states that the applicant will make the improvements for the frontage
of both of his tracts and at the intersection to Market Street, along with the right turn lane and the
other TIA improvements and maintain it and create a maintenance agreement. Ms. Wolf explained
that is their effort to cover what they are able to cover in regard to the questions that will likely
come up later in this conversation. She stated in regard to the rest of Bump Along Road, she has
spoken with one of the owners and Ms. LeGwin and the property owners maintain it themselves.
It is an easement, it is Ms. LeGwin’s fee simple land, and they all access their homes, and the
applicant has no control over Bump Along Road behind a specific point. Ms. Wolf wanted to clear
that issue up because of some of the old GIS maps and the land records department being
presumptive based upon deeds, assuming that the deeds were outlining a right -of-way, which is
not the case. She presented the plat that eliminated the section of easement that went over to
Raintree Road. She verified that Raintree Road is a public road, is maintained by the NC
Department of Transportation, and dead ends into the site. Ms. Wolf also pointed out an old well
site of the Cape Fear Public Utility Authority, which was New Hanover County's utility at the time,
noting the lot beside it is an open space lot, and then there are a couple of lots that have been
unbuildable because they can't get septic permits. There is a stretch of a couple hundred feet of
Raintree Road that although it is public and is maintained by NC DOT, nobody actually fronts on
it or uses it very much. As shown on photos, people did create a pathway from the end of the
pavement on Raintree Road and were traveling for a time over Ms. LeGwin’s land, but that has
been closed off.
Ms. Wolf stated the applicant is seeking a special use permit for a convenience store on
this Office and Institutional zoned property. Marketing wise, there is a station up beyond Porter’s
Neck Road on the east side of Market Street. Going south on Market Street, the next available
convenience store or gas station is located on Gordon Road and there is nothing from Market Street
down Military Cutoff until Landfall so the applicant feels this use is an appropriate service for the
area. The applicant’s original submittal did not show a connection to Raintree Road. It showed
this exit and showed this circulation around the proposed facility just circulating off and not
happening. The planning staff informed her that they were very concerned about access, but she
has the burden of trying to balance what she believes a lot of people may talk about tonight. A
traffic impact analysis has been done, which suggests that five percent of the traffic if this were a
two-way situation would access and egress from that point. She pointed out all of the dead end
roads off Alexander Road, noting that five or six dozen properties, homes, would potentially come
in the back way to go to that gas station or come back. However, the traffic impact analysis is
suggesting that five percent of the people coming up Market Street would use the leftover that is
going to be created at Alexander Road and come into their site in that direction and probably then
leave at Market Street if they were going south. She thought that is where the concern lies. The
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applicant doesn’t feel they need that connection for their purposes. Ms. Wolf stated she feels that
one of the findings asks if there is an adverse impact of this project on adjacent properties, and she
believes that is the case; therefore, the applicant would prefer not to make that connection.
However, if the planning board sees that connection as valuable, she believed that an interior only
connection would be the best option, as it would cut down on traffic through that neighborhood.
In regard to the finding related to public safety, they would be making improvements at Bump
Along Road would include the right turn lane. Part of the NC DOT project is the median, but also
a sidewalk along Market Street so the applicant has connected not only from our project into the
sidewalk, but is willing to put in that connection to the end of Raintree Road for bicycle and
pedestrian access whether or not that road connection is made. The site plan has been evaluated
for general consistency to the zoning ordinance and codes. It would have to go through detailed
design and permitting but we believe we have a stable, technically sound project and plan. Adverse
impact to adjacent property values will probably be discussed more later in the meeting. She stated
Mr. Schuler did a great job describing how this proposed project is a service and complies with
the comprehensive plan, which encourages new and retaining businesses and locating services in
the proximity of the markets they will serve. The applicant believes this particular project is
certainly one of those being located on the busy corridor along Market Street. Ms. Wolf concluded
her presentation and offered to answer questions from the board.
In response to an inquiry from Chairman Girardot, Ms. Wolf confirmed there is no
signalization between Alexander Road and Market Street for those folks turning left. That will be
a left over as seen in other places. There will be a left over from the northbound lane to make a U-
turn about 800 feet south of Alexander Road. There will be two left overs to make the changes
between the Bayshore traffic light and the Marsh Oaks traffic light.
In response to a question from Vice Chair Ernest Olds, Ms. Wolf confirmed there is a
stormwater pond on the site plan located on the other parcel that will serve the convenience store
and will eventually serve both parcels. She stated the applicant will not be relying on underground
storage because the soils there are sort of marginable and there will be a certain amount of fill by
engineering rules and the separation of seasonal ground water, etc. Underground infiltration was
not possible. There is a section of wetlands which the applicant is not proposing in this phase or
any other phase to impact. A more detailed plan is included in the packet. In response to the Mr.
Olds’ inquiry about the L-shaped pond, Ms. Wolf confirmed that area is currently wooded and
would need to be cleared for the pond, however, it would be required to buffered.
Vice Chair Olds pointed out that there is a Speedway store across from the Ogden Tap
Room in Ogden and a BP across the street. Ms. Wolf confirmed he was correct, noting she wasn’t
thinking about the Middle Sound Road intersection.
In response to an inquiry by Board Member Jordy Rawl in regard to the Aldi supermarket
across the street and the signalization at Marsh Oaks, Ms. Wolf confirmed the Marsh Oaks signal
is already in place. She reported that both the Aldi traffic as built out and the Amberleigh Shores:
Phase 2 traffic as built out were included in the applicant’s traffic impact analysis. The TIA
contains a statement that says even though those projects are not in place, the individual traffic
impact analyses that were done for those projects were included in the scoping and in the
calculations for the applicant’s project so all of those service levels, trip generations, etc. are
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cumulative of all of those current projects coming in, as well as the end of the median project by
NCDOT. The project TIA includes all built out recommendations.
Mr. Rawl inquired if there are any proposed renderings of what the facility may look like
and if it will be a Circle K. Ms. Wolf explained that client has his own style of facility and has
other convenience stores, but he is not associated with a chain like Circle K or Scotchman, etc. He
is currently building a new store on Gordon Road at the I-40 entrance ramp.
Board Member Allen Pope asked if the improvements that will be done along Bump Along
Road in the legal document Ms. Wolf referred to would be for public dedication. Ms. Wolf
explained that the improvements would not be for public dedication. That property belongs to Mrs.
LeGwin and she is not looking to dedicate it. The applicant has eve ry right to use it and she has
agreed to give them that additional right to make those improvements of the curbing and the extra
width of the pavement. Ms. Wolf stated she would defer that question to the applicant’s attorney
if needed. In response to Mr. Pope’s inquiry about the staff’s recommendation to have this
dedicated as an easement or right-of-way, Ms. Wolf stated the applicant has no ability to do make
that dedication. Ms. LeGwin would have that right, but the applicant doesn’t have that ability or
right.
Chairman Girardot asked if Ms. Jenkins would like to speak in regard to the item, noting
she had signed up as a public speaker.
Patricia Jenkins of Hogue Hill, LLP, attorney for the applicant, stated with respect to the
road maintenance and agreement, they don’t anticipate any obstructions to that. They have already
been in conversation with Ms. LeGwin’s attorney and they have come back with some initial
questions, which are very esoteric such as mailbox placement. She noted that is an agreement for
the improvements as shown on the site plan in exchange for road maintenance to the extent of
those improvements.
Chairman Girardot opened the opposition portion of the public hearing.
Paul Cole, of 7827 Sansberry Court, spoke in opposition to the request, citing concerns
about stormwater management, environmental protection and crime. Mr. Cole stated this is his
first quasi-judicial hearing and he would like to present several documents for the record.
Chairman Girardot instructed Mr. Cole to provide those documents for the record to the
Deputy County Attorney.
Paul Cole stated the documents submitted for the record include a word document
submitted by a retired engineer who did a hydrological examination of their neighborhood; a photo
of the site, which is a bottomland swamp full of bald cypress and sweet gum species that are
indigenous to those type of habitats and only grow in those very swampy, wetland areas; and a
photo of the applicant’s new construction on Gordon Road at the I-40 exit, which provides a
perspective of his style for his gas stations. He stated he represents the neighborhood of Brickstone
Estates and the residents have come to an agreement on the terms he will present to the planning
board. He noted there are all in favor of the applicant’s property rights and his ability to develop
it, but they are also advocating for the protection of their rights as residents of the adjoining
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neighborhood. As a lifelong resident of New Hanover County, he has experienced a lot of the
growth that has happened and a lot of sentiment that the county has felt, particularly in the recent
times, about how we foster economic growth while protecting our resources that everyone has
moved here for and everyone loves the area for, most notably our wetlands, our natural habitats
and the charm of our town. He feels this development would sacrifice the protection that we have
on those wetlands. Mr. Cole stated as the neighborhood lies, it is a sink of about four to five
wetlands that are interconnected. You can look at them as one particular pond but the hydrological
behavior of them is that they are all connected. He asked the board to imagine a system of five
tubs that are connected via underground pipes, which you never see, but they are all interconnected.
If you fill in the bottom tub that is the lowest on the land, the upland tubs would become more full,
which is how hydrology works. If you fill in these wetlands, there will definitely be repercussions
for them in the neighborhood upland of this property.
Mr. Cole stated the comprehensive plan was adopted by the county last year for the first
time and a lot of taxpayer money was spent to plan, draft and approve this plan, but a plan is only
as good as the enforcement. We set these goals and as citizens we put our trust in the government
to look at these zonings and apply strict regulations and strict scrutiny of adjustments to those
zonings. He feels this is an example of where we can make that step forward since we finally have
a plan. On page 11 of chapter 3 in the comprehensive plan, it states that the plan is to promote
environmentally responsible growth. The explanation of that growth is where and how growth
occurs can have an impact on environmental resources. Responsible growth includes strategies to
encourage the desired levels of new growth while minimizing negative impacts on natural
resources. In that growth, it explains promote a mixture of uses where appropriate in an effort to
cluster development and minimize impacts. He and his neighborhood residents feel that this
development including underground storage tanks that are at the head waters of Pages Creek,
which are classified impaired water where there is no shell fishing, no consumption of shell fish
of any sort, and impaired water quality, would directly be impacted by a leakage of that
underground storage tank, as has happened on the corner of Middle Sound Road and Market Street
at the new Publix location. There has been remediation of the underground storage tank there
because of a leak and a rupture in their tanks. He would not say that is what happens at every
underground storage tank, but history tends to repeat itself.
Mr. Paul Cole stated that another harm to public safety and health is the crime that is
associated with convenience stores. He cited several statistics taken from the New Hanover
County Sheriff's Department's webpage, noting he had only included gas stations that are within
500 feet of residential areas. He explained these are apples to apples statistics within the county
in unincorporated areas that directly adjoin residentially zoned neighborhoods. For example, at
the Scotchman at 6759 Carolina Beach Road, which has residentially zoned neighborhoods
directly behind it and the Tidalwalk neighborhood to the southeast, the 2016 criminal activity
involved with that gas station includes a DWI, assault with a deadly weapon, and stolen property.
That may not seem like a big deal, but when there is a connecting road to a residential unit, you
can say that having houses within 500 feet of a property that has crime is not consistent with
protecting public health. He noted that in a quasi-judicial hearing you can't infer much, but you
can say that. The 2016 activity for the Wilco-Hess gas station at Cathay Road and Carolina Beach
Road, which is directly in front of Monterey Heights subdivision, shows four counts of breaking
and entering, fraud, credit card fraud, and two counts of DWI. At the Scotchman on the corner of
Antoinette Drive and Carolina Beach Road, the 2016 activity shows three counts of fraud,
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overdose, three counts of personal stolen property, assault, and three counts of larceny or simple
theft. He pointed out the residential areas around it. At the Silver Lake Market further up Carolina
Beach Road, there were two counts of larceny in 2016, and at the Monkey Junction Pit Stop, which
is many people’s favorite hot dog store, the statistics include assault on a female and breaking and
entering, which are statistics you cannot disprove and must acknowledge when approving a gas
station at the front of a neighborhood. Mr. Cole explained this doesn’t just happen in the Monkey
Junction area; it also happens along Princess Place Drive at the Prince Mart on the corner of 30th
Street and Princess Place Drive, where there are residential units on 30th Street and Section 8
housing nearby in the Creekwood neighborhood. The 2016 statistics there include 2 counts of
failure to appear, possession of narcotics, and civil contempt.
Mr. Cole then provided a slide reflecting the gas stations currently in the Porters Neck and
Ogden area, which include Porters Neck Country Store, which is located 1.02 miles north of the
proposed parcel from closest property line to closest property line and is in the area. In January
2017, there was a robbery there and in August 2016 there was an overdose. He reported that the
Speedway mentioned by Vice Chair Olds is exactly 1.01 miles from the parcel, and the crime in
that convenience store-gas station in 2016 included fraud, stolen property, breaking and entering,
DWI, and larceny. He noted while this isn’t to exclude all gas stations from being built, he believes
that we can pick and choose where we put gas stations so they don’t harm and endanger our
citizens. Mr. Cole also stated in regard to the need and necessity of this proposed gas station, the
traffic impact analysis did not include the impact of the Military Cutoff Extension, which will
greatly reduce the volume of traffic heading south on Market Street into town. He believes that the
owner is depending on that volume to provide customers for his business. Mr. Cole stated, in
conclusion, that with the nearby Aldi, Harris-Teeter, Food Lion, and the Publix being developed,
there is not a specific need for a convenience store with healthy foods. There are also gas stations
within a mile north and south of both lanes on Market Street, including two heading south if you
consider the one next to Smithfield's. He stated he believes that the need and necessity are far
outweighed by the environmental costs and the costs to human and public health that the gas station
proposes to Brickstone Estates. He thanked the board for their time and offered to answer
questions.
In response to Board Member Allen Pope’s question regarding who he represents, Mr. Cole
stated he represents the neighbors that were contacted for the 500 feet community meeting notice
and the folks he has spoken to in the neighborhood about the property. Mr. Pope said he noticed
on the community meeting report that approximately twelve people had attended the community
meeting. Mr. Cole stated the residents have met formally apart from the community meeting on
August 30th and there were 12-15 people at that formal meeting, which he represents.
Board Member Paul Boney asked Mr. Cole how he felt about blocking off the through
traffic and whether that would eliminate any of his concerns about crime or other things. Mr. Cole
responded that he definitely thinks that it helps the sentiment toward the crime and thanked Ms.
Wolf for implementing that into her new site plan, but a means of ingress, and formally not an
egress, he believes are not abided by very well. He noted a one-way road is a one-way road in or
out. The residents do expect per the site plan that was proposed a pedestrian pathway, but they are
adamantly opposed to an ingress and egress via vehicular traffic. In response to another inquiry by
Mr. Boney, he confirmed they would be okay with the bicycle lane and bein g able to walk back
and forth, but were not okay with allowing vehicle access.
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Chairman Girardot opened the rebuttal portion of the public hearing and recognized the
applicant.
Ms. Wolf stated during rebuttal that there are established regulations for the filling of less
than an acre, which is the little pocket on the front. The applicant has a wetlands consultant
working on the permit now. She acknowledged they are wetlands and they try to preserve them.
Because the wetlands on both tracts were delineated at the same time, the fact that this plan shows
the wetlands at the back being preserved will have to be part of that permit for the half acre that
will be filled on the front so they will say they are still preserving wetlands, but based on this
parcel being road frontage you can understand the value of taking advantage of the rules and
regulations as the nationwide permit avails us. New projects require a variety of permits, including
stormwater which is often one of the biggest things we talk about and part of that is making sure
there is a stable drainage pattern for the water to get to that pond and then any overflow for what
the pond is designed for to continue. The water comes down towards the Market Street area
through some wetlands over the CFPUA’s wellsite and goes under Market Street so they feel that
they have already located the logical drainage pattern that would work with this particular project.
Ms. Wolf stated in regard to interconnectivity, which is more often residential to residential,
residents are averse to it because they don't want anyone else coming through their neighborhood.
However, in this particular case she thinks the interconnectivity is an unnecessary evil because it
is certainly a commercial aspect and a residential neighborhood and is like oil and water so she
understands their concerns. Ms. Wolf said her client would love to have those several dozen people
be able to come and easily use his convenience store, but for the balance of protecting that
neighborhood and goodwill, they have no problem with not having a connection there at all.
Noting the earlier speaker’s comments about the bathtub analogy in regard to hydrology,
Vice Chair Ernest Olds asked Ms. Wolf to comment on the positive or negative effects of the
proposed development on the drainage patterns of the other land in the area. Ms. Wolf responded
that she couldn’t viably do that because they haven’t gone into the detailed design of the project.
They have located the wetlands and there are a couple of pockets around. They have located a
stable drainage pattern that comes down to Market Street and goes under toward Page's Creek as
Mr. Cole pointed out as far as the drainage basin goes. She explained that is generally taken care
of in detailed design and there are engineers at the county that will review the engineers for her
client. She said she can only refer to the strict regulations that the applicant will go through for
that portion of it, which generally they don't do at this early stage of concept.
Chairman Girardot stated that crime seemed to be an issue and she had noticed there were
no lighting or other safety features included on the proposed site plan. She asked Ms. Wolf to
comment about those features. Ms. Wolf responded that the store is along a highway and isn’t
directly abutting any residences. Nevertheless, there are code regulations that require any lighting
on the site be prevented from straying into any residential properties. There would be security
lighting and under lighting in the canopies of these types of facilities so there would be safety and
security lighting all around the building, particularly since they have that circulation pattern going
around the back for larger vehicles that can’t make a U-turn in the fuel pump area. Chairman
Girardot asked Ms. Wolf or Ms. Jenkins to comment in regard to safeguards on underground
storage tanks. Ms. Wolf stated that underground storage tanks are highly regulated by both state
and federal agencies. She said over the years there have been issues with older stations and so
rules and regulations have changed exponentially with regard to safety standards and the types of
Page 11 of 23
materials and standards for installing them. She isn’t prepared to address that, but there are
agencies that will regulate all of those things.
Board Member Paul Boney asked Ms. Wolf to confirm if approximately forty percent of
the site looks like the wetlands shown in the photo presented earlier by Mr. Cole. Ms. Wolf said it
is a low spot and 0.49 acres would be filled. She would envision a retaining wall on the edge of
the sidewalk. The entire site is 1.783 acres so approximately 35-40% of the site is wetlands, but
she isn’t sure if it all looks like the photo presented by Mr. Cole. Mr. Boney inquired if Ms. Wolf
had made adjustments to the site plan to avoid the wetlands. Ms. Wolf explained that they couldn’t
go any further back on the site because of the utility easements. She noted this is road front
property and they are preserving other aspects of the wetlands in this area, but that particular part
of wetlands was not found to be of a high quality because of its location next to the road . The
applicant will make other improvements and will create a retaining wall to maintain the buffer,
have the sidewalk across the top of the retaining wall, and obtain a nationwide permit to fill that
area. Mr. Boney asked if there was another way to develop the site and allow the owner to utilize
it. Ms. Wolf stated it is half an acre and that is why they have the ability to fill it. Mr. Boney
commented that he didn’t know if the proposed use is the highest and best use for the site.
In response to an inquiry from Board Member David Weaver, Ms. Wolf stated the wetland
area was delineated approximately four years ago and it was approved. The initial report defined
it as an isolated wetland, but apparently the wetland consultant at that time did not push for that
determination from the U.S. Army Corps of Engineers so when the current paperwork came out,
it was not defined as an isolated wetland. When her consultant went out, he believed it was an
isolated wetland, but as long as that delineation is in effect, which will be for the next year or two,
the applicant is treating it as if it is not isolated so they can’t by-right fill it and will have to go
through the nationwide permitting process to fill it. Mr. Weaver asked if Ms. Wolf felt that
convenience food stores breed crime to adjacent neighborhoods. Ms. Wolf replied that there is
crime everywhere, some of which depends on the neighborhood or the section of the city and on
other things, such as whether the location is remote or is well lit. She stated she was not prepared
to address that issue, but knows that her client, like any other business owner, strives to have the
safest and most secure facilities to ensure the success of his business.
Board Member Jordy Rawl inquired what hours of operation were being proposed for the
convenience store. Ms. Wolf replied that the hours of operation for the store had not yet been
determined. Mr. Rawl inquired about the classification of the wetlands on the site, noting in the
delineation there is obviously several different t ypes of wetlands, but it looks like a pretty
established wetland, almost a swamp area. Mr. Schuler stated staff had looked at it and based on
the conservation overlay district, staff feels that its characteristics follow more of a swamp forest.
Therefore, it doesn’t meet the size requirements that conservation space or conservation setbacks
would be applied to. Mr. Rawl asked for clarification of staff’s position not to impose an additional
setback off the wetlands. Ms. Wolf stated the setback would not be imposed because it is swamp
forest and is not five acres. Mr. Schuler explained that there are three resources – swamp forest,
Pocosin, and savannah – and in order for conservation space and setbacks to apply, there would
need to be at least five acres on the property. He noted it also allows for fifty percent (50%) of
those to be developed. Ms. Wolf added that there is also a 0.5 preservation factor in that particular
resource in addition to the size of the resource itself as Mr. Schuler pointed out.
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Chairman Girardot inquired if, given Mr. Boney’s earlier comments, staff was comfortable
paving over with impervious surface that much wetlands and putting underground storage tanks
into that type of ground. Mr. Schuler explained that there are permits the applicant would be
required to obtain from the U.S. Army Corps of Engineers and additional permitting for the storage
tanks so as long as the applicant obtains those permits staff is comfortable with that occurring.
Chairman Girardot asked Bill McDow of the Wilmington MPO to comment in regard to
the recommended connection to Raintree Road due to safety and emergency reasons, given both
the residents and the applicant have stated they would rather not have that connection.
Bill McDow of the Wilmington Metropolitan Planning Organization (WMPO) reported
that the traffic impact analysis (TIA) for the proposed project has not yet been approved, but it is
being evaluated. One of the recommendations presented by Davenport in the TIA was that the
project would have the improvement to Raintree Road. They also had an alternative that did not
have that improvement in place and the difference in terms of level of service to the ongoing
corridor of Market Street would be pronounced. At both Marsh Oaks Drive and Market Street, as
well as the U-turn, the level of service (LOS) would drop, and in the built-out condition, at the U-
turn the LOS would go from a “C” to an “F”. It also recommended that after this project is put in
place, if it is approved, they study specifically the U-turn to determine if it would require
signalization. Inside the TIA, they had the trip generation and the distribution. The distribution
saw that there would be approximately forty percent (40%) of the traffic that was going up to
Market Street that would go to the U-turn, make a U-turn and then come back to the grocery store
as their way of accessing the grocery store. Mr. McDow noted the TIA also showed there is a
possibility there would be neighborhood trips and it was shown as five percent (5%) percent;
however, that 5% percent was based upon a connection at Raintree Road. If that connection was
not in place, some people would have to make a second U-turn. They would make a U-turn south
of Alexander Road, then make another U-turn to get to the convenience store. Mr. McDow stated
that traffic would increase more by not having the connection rather than having the connection in
place to the left turn to Alexander Road and then to Raintree Road.
Board Member Allen Pope asked if there was any opportunity for emergency services to
make comments about that connectivity and their ability to service that neighborhood. Mr.
McDow replied that typically that input would be received during the Technical Review
Committee review process. Mr. Schuler stated he had talked to a fire marshal about this issue and
they do see the benefit of that connection. Board Member Jordy Rawl inquired if this proposal as
a commercial project would go through the technical review process. Mr. McDow noted that
planning staff would know whether that review would take place. If it is a by-right project, it
wouldn’t be required to go through the TRC process. Mr. Schuler said it is definitely optional and
can be encouraged by staff, but it is not a requirement of the county’s ordinance for a by-right
project to go through the technical review process.
Board Member Paul Boney asked for a clarification in regard to the wetlands that abut the
south property line, noting Ms. Wolf had mentioned a wall, but it doesn’t appear that the wetland
stops at the property line. Ms. Wolf confirmed that the wetland does go on past the property line.
Mr. Boney inquired how the applicant will address preventing the natural flow of water back and
what effect filling and cutting off that flow would have on the adjacent property. Ms. Wolf
responded that it is no different than putting in a bulkhead or retaining wall where water comes up
Page 13 of 23
further into a parcel of land. They would construct a bulkhead and fill behind it, utilizing structural
regulations and techniques. She would suggest the bulkhead or retaining wall would be on the
twenty-foot mark because of the setback requirement for the 20-foot buffer yard as the utility site
is zoned as residential. That would also give them the ability to work in that area. At the foot of
the bulk head or retaining wall would be then recovered wetlands so they aren’t filling all of the
0.49 acres, but certainly the majority of it. The hydraulics, etc. would be designed with the wall.
In response to Mr. Boney’s question regarding the sidewalk, Ms. Wolf explained there would be
a sidewalk connecting Raintree Road to Market Street. It is feasible that there will be additional
wetlands on the subject property that are not being affected and will go with the original wetland
on the other property. The engineer for the proposal will ultimately determine how it is done. She
agreed there would probably be a rail along the sidewalk depending on the amount of fill and
explained that when driving down Market Street there is a dip currently where the wetlands are,
but when that is filled in and brought to a common elevation with Bump Along Road, you will see
a retaining wall. In response to Mr. Boney’s comment regarding how much the wetland would be
raised to keep the site from flooding, Ms. Wolf stated that the wetland would be filled in to the
elevation of Bump Along Road and the whole site would be leveled off. Board Member Allen
Pope commented that the elevation of Market Street is about thirty feet, the elevation of Bump
Along Road is about thirty feet, and the low point of that wetland area is a little less than 26 feet
so the retaining wall would be about four feet high. Mr. Boney said he was trying to determine
how much fill would be needed on the site and noted that on that south side the difference will be
at least four feet, which would be more significant than a curb. Ms. Wolf stated if you are on
Market Street at thirty feet, you will see the railing, but you won’t necessarily see that wall that
goes down four feet into the hole of the wetlands.
Ms. Wolf clarified that the traffic analysis suggests in Alternative #1 where there is a
connection between Raintree Road and Bump Along Road, in effect, because of coming through
the applicant’s property that 5% of the traffic would come and go that way; and in Alternative #2,
where there is not a connection, that 5% percent goes back to Market Street and those numbers do
not change the levels of service for Market Street itself. They are talking about 5% of all the traffic
if it is connected, not the 5% if it’s not connected so that isn’t a big change.
During opposition rebuttal, Paul Cole stated he had some additional documents that would
be beneficial in regard to some of the questions that had arisen. The first document is an aerial
image overlaid with the topographical map reflecting the corner property on Bump Along Road,
which is the proposed parcel. He noted that contour of 24 feet runs along and behind the adjoining
property, the well site, and into the next property and that describes the nature of how that wetland
falls, that similar elevation, how the water behaves in that area. The 4-foot retaining wall would
be 30 feet abutting 26 feet, which may not be noticeable from Market Street, but on Raintree Road
where it will interconnect, you will most definitely understand that 4-foot retaining wall as
Raintree Road experiences that change in elevation from Bump Along Road. As you turn off Bump
Along Road onto Raintree Road, you experience a dip and if you were to elevate that parcel to
thirty feet, that dip will go from that parcel of 30 feet to 26 feet as it moves off that property line.
Mr. Cole stated they would like to stress that while this wetland may seem isolated, it is in fact
not. That is not the behavior of the land. The behavior of that wetland as shown on that
topographical map is that water will start in that wetland sink approximately two streets over and
will go through underground culverts from wetland to wetland as it drains out of the neighborhood
Page 14 of 23
into the subject parcel and will then go under Market Street where there is a drainage culvert
instituted by NC DOT, and then into the headwaters of Pages Creek.
Mr. Cole commented that roughly 80% of the crime statistics he had presented earlier were
pre-10:00 p.m. so statistically speaking the operation hours of the convenience stores did not have
a significant impact on the crime related to those incidents. Those crimes occurred between 2:00
p.m. and 9:00 p.m. and only a handful of crimes occurred after 10:00 p.m. or 11:00 p.m. and had
no impact on the gas stations presented earlier. He offered to answer questions from the board.
Board Member David Weaver commended Mr. Cole, noting he had done a lot of research
and it is rare that this much research is done by a concerned citizen. He inquired in regard to the
crime statistics cited if there was any evidence Mr. Cole was aware of or had looked into about
whether or not the crime in a surrounding neighborhood increases when a convenience food store
is located nearby. Mr. Cole stated that information is not out there and it is very difficult to establish
causation and correlation with that crime. It's hard to pinpoint a crime that happened down the
street to the gas station at the center of the road, but from objectively looking at it, there are some
businesses that attract crime and some businesses that don't seem to attract crime , statistically
speaking. Mr. Cole said he was not saying that gas stations do cause crime, but you can say there
is a strong correlation between gas stations and crime.
Chairman Girardot commented that she would like to see if the crime statistics would be
the same if the site should be used for a fast food store or some other type of retail. Chairman
Girardot stated because the public hearing is quasi-judicial, there is only so much of that
information that the board can take into consideration.
Paul Cole stated they are not opposed to any development on that property. They would
like to see a round peg in a round hole rather than a square peg in a round hole. They feel that an
underground storage tank in a swamp like that would be a square peg in a round hole and just
doesn't fit what the site calls for. A retail site could be placed on the site that wouldn't have any
implication environmentally. The residents and neighbors have discussed that and are all for
planning development for what the property calls for and that is the best and wisest use of that
land.
Board Member Ted Shipley stated he thinks the crime argument is not one of the best
arguments on this proposal because vacant land also has certain elements of crime that occur there
as well. Wooded tracts near highways do that, as do fast food stores and others. Some statistics
shown were embezzlement and fraud, but somebody who wanted to commit credit card fraud could
have done it at another store further up the road. It’s not the convenience store itself, but the people
in there that commit and cause crime. Mr. Shipley commented that Mr. Cole has a good argument
with the hydrology and the wetlands and the body could consider it.
Chairman Girardot closed the public hearing and opened the planning board discussion
period.
Board Member Allen Pope he had spent his entire career trying to make connectivity to
every opportunity he could so he is very torn about the opportunity to provide connectivity to this
subdivision; however, there are two things that deter him. First, they have heard from residents
Page 15 of 23
tonight, but can also see the actions of others in that neighborhood who obviously are using that
connectivity today because that path is very well worn. In general, he is very concerned about
connectivity because this is a great opportunity to provide fire and emergency services to this
neighborhood in a quicker fashion than they currently have or will have if there is no connection.
Second, if we prohibit one of those movements to Raintree Road, we should prevent any movement
other than pedestrian and bicycle access. As Mr. Cole mentioned, a one-way access is only as
good as the person driving the one-way access. There is no way of preventing someone from
going in the opposite direction. For that reason, he would suggest that if the board doesn’t allow
full movement they not allow either movement.
Vice Chair Ernest Olds stated this is perplexing, noting his agreement with Mr. Shipley’s
comments from an environmental standpoint. That is one point, but there are four findings to
consider and he finds that the proposal fits in many aspects. It is the proper scale, is the proper use,
and is in a reasonable location. It meets most of the tests. It fails on the environmental test, but he
is not so sure that carries the day. He was curious how the rest of the planning board members felt
about having a single item that is strongly in the negative with so many other items that are strongly
in the positive.
Board member Allen Pope commented in regard to the fuel tank in the ground and the
wetland area, he knows from his past experience there have been a lot of ruptured tanks, primarily
older tanks. A tremendous amount of remediation has been done on that issue and there has been
a lot of legislation that hopefully will prevent that from occurring. He is sure that the property
owner or developer could make comments about the types of tanks that they have to use now,
which are double lined tanks, and they will also have to do monitoring around those tanks
continuously, as well as continuous monitoring of the materials that are in those tanks. For those
reasons, he isn’t as concerned with fuel spillage in regard to the tanks. Mr. Pope noted in regard to
the wetlands, this project does fall within the regulations of being able to be filled in. It is on the
upper end of this wetland system and it is the natural flow to flow away from the site.
Chairman Girardot said she agreed with Mr. Pope. The site is going to be used and no
matter what is built on it, there will be some filling of those wetlands. The filling of the wetlands
being proposed by the applicant is in compliance. As Ms. Wolf and Mr. Pope stated previously,
the safeguards on underground storage tanks have been considerably tightened in the last few years
and there is a lot of regulation, state and local, on underground storage tanks.
Board member Jordy Rawl said he was in agreement with the chairman and Mr. Pope as it
pertains to the installation measures that new facilities are required to install with this type of use,
but he would say adversely that there is also a general carelessness from the human factor that
can’t be regulated or quantified, such as carelessness on filling up with gas, throwing away waste,
letting an oil leak occur for thirty minutes while trying to change it , etc. Mr. Rawl said he had
really struggled with this site, and usually it’s not a major issue for him. In looking at the wetlands
type and the differential in topography, there are some very low areas at 24 or 25 feet up to 32 feet
so it’s obviously been a depression area for a long time. He would ask how the proposal fits with
the way that part of the county is starting to come together. There are a lot of changes coming that
way. He questions if a gas station is really the best use for that piece of property. He has a
tremendous respect for the applicant, and has agreed with everything she’s put forth before this
board. It is a challenging site to work around and Ms. Wolf has used her expertise to the best of
Page 16 of 23
her ability to fit this particular product type on this site, but he is not in favor of the use type. It has
nothing to do with the way it was presented, but whether it is worth it on this small site on Market
Street across from what will probably be a busy intersection with a new grocery store coming soon
and where there are apartment buildings in the city. If you are traveling down US 17 North, you
will need to make a left at that intersection and then immediately get into the right-turn lane to get
into the proposed gas station. Mr. Rawl noted they had all heard the comments about the crime
and while he wasn’t prepared to argue one way or another on that issue, he would say that placing
a 24-hour gas station in front of a residential community with this haphazard ingress-egress point
that people may use against what its actual intent would be puts that location in a bit of a
compromising situation. Mr. Rawl said he unfortunately cannot put his support behind this
proposal. He respects the right of landowners to use their property as they see fit, but he can’t see
a gas station being the best fit for that section of New Hanover County
Board member David Weaver stated in regard to the issue of connectivity, he fully agreed
with Mr. Pope. The connection needs to be there for emergency vehicle use and it makes more
sense to make the connection in this case. He said with regard to the drainage, if anyone is ever
going to use that property, they are probably going to legally fill in that wetland. He doesn’t think
that can be avoided. He noted the drainage aspect is almost independent of what use we put in
place there. Mr. Weaver wondered what the board would consider suitable for this site if they
don’t think a convenience food store is suitable. It is obviously within the policies of the
comprehensive plan to do a commercial venture in this kind of location. He also wondered if a
convenience food store is the highest use or if they should try to hold out for some kind of
retail/office use, which would be a commercial use where there would probably be less concern
about crime. Mr. Weaver stated that he would agree there may be a better use for this land than a
convenience food store.
Board member Jordy Rawl clarified that while crime could be a related concern, it is not
the basis for his position of disagreement with the proposed use type. One could look at all the
different factors that a convenience store could potentially bring and the repercussions of those.
Mr. Rawl explained that his concerns are the 24-hour nature of a convenience store, congested
traffic activity in the area, and the wetlands environmental issues on the site, combined with a kind
of elicit use type going into a residential section of northern New Hanover County.
Board member Paul Boney complimented Ms. Wolf on doing a great job with the site plan.
He said his concern with the wetland is that the wetland is connected to another piece of wetland
and doesn’t just stop at the property line. With the current regulations, one could go in with any
project and cut it up by moving the property lines. He knows that isn’t what the applicant did, but
environmentally that was one big wetland at one point and it still is. They are cutting it off and
filling it, but they’re leaving the other piece just as it was and he thinks environmentally, you have
to take a look at the whole. Mr. Boney said in regard to crime that there is a certain amount of
crime with any business. He also stated he would eliminate the connection to the adjacent
subdivision to prevent the traffic cutting through the neighborhood as he felt that was something
the applicant and the owner have agreed to do. He inquired if Ms. Wolf had considered includ ing
the L-shaped back parcel in the design if the applicant didn’t have to worry about the connection,
and whether it would be possible to do what they would like to do and avoid and preserve the front
wetlands similar to the environmental preservation done on the Mayfaire tract. He felt she could
become a hero by preserving that wetland because it should be preserved and the owner would still
Page 17 of 23
be able to do what he wants to do if the connection wasn’t an issue. He noted it’s not the typical
convenience store model, but many places are getting more creative about those types of things
because it is the right thing to do. Mr. Boney said in conclusion, he didn’t think many people would
turn around in the heavy traffic on Market Street to fill up their car at th is convenience store
because there are too many more options nearby.
Hearing no further discussion, Chairman Girardot asked the applicant to come forward.
Chairman Girardot stated that a special use permit which is denied may only be resubmitted if
there has been a substantial change in the facts , evidence, or conditions of the application as
determined by the planning director. At this time, you may ask to either continue the application
to a future meeting or to proceed with this board deciding whether to recommend approval or
denial of the application. What do you wish to do?
Cindee Wolf confirmed the applicant would like to move forward in the process. Ms. Wolf
also confirmed the applicant agrees with staff’s findings and the proposed conditions, with the
exception of the connection to Raintree Road as they feel it could adversely affect Finding #3,
which is the property values of the adjacent properties.
Deputy County Attorney Sharon Huffman stated that staff had recommended a condition
that Bump Along Road be a dedicated easement or right-of-way, but Ms. Wolf and Attorney
Jenkins had said that is not possible so there needs to be some discussion about that issue.
Chairman Girardot entertained board discussion on the recommended condition.
Board Member David Weaver commented that the fact that the applicant is not able to
negotiate a dedicated easement or right-of-way with Ms. LeGwin doesn’t necessarily mean that
the board needs to approve the project the way it's laid out. Ms. Wolf stated that to meet the safety
criteria, the applicant is improving the intersection and improving the pavement, and to address
the concern by staff regarding who is maintaining it since it is not a public right-of-way, the
applicant is obtaining a maintenance agreement for their frontage which will benefit everyone
along Bump Along Road. Beyond that, they are just saying that they don’t have the ability to
dedicate it for public use and that dedicating it for public use would be a slippery slope because
the NC DOT, even if it was dedicated for public use, would never take it over for maintenance
because it doesn’t go anywhere. She noted it will certainly become public because the public if
they are using this establishment upon approval will come and go on it.
Deputy County Attorney Huffman stated her concern initially was that the applicants and
their attorney had said earlier that Bump Along Road couldn’t become a publicly dedicated
easement or right-of-way, but they didn't disagree with that condition recommended by staff when
the Chairman asked if they agreed with the findings and conditions. Second, Ms. Huffman asked
the board to discuss what would happen if the applicant has a maintenance agreement, but doesn’t
have an easement and Ms. LeGwin decides in the future that she doesn’t want people using it
anymore.
Patricia Jenkins, attorney for the applicant, stated that her client, as the other adjoining
property owners on Bump Along Road, have a private access easement to their properties via their
deeds that come through their chain of title. The road maintenance agreement that the applicant
Page 18 of 23
has in front of Ms. LeGwin is a road maintenance agreement that will be on record that both parties
agree to the improvements as shown on the site plan proposed, which actually encroaches on that
access easement and allows the applicant to continue to use that road with those improvements for
the purposes shown on that site plan. She explained there is an access easement, but the applicant
does not have the right to dedicate the road because it is not their road. She pointed out that staff’s
recommendation for connectivity and the public dedication came under addressing the finding that
the proposal will not materially endanger the public health or safety. There has been no finding
that the applicant’s use of the property for this permitted use would endanger the health and safety
and that they are addressing that by connectivity or by a dedicated easement. The applicant is
addressing those concerns by doing the improvements that were shown on the site plan. Ms.
Jenkins stated she believes that condition doesn’t speak to that criteria and that the applicant has
met all four criteria for the special use permit, including harmony, safety, and the adjoining
neighborhoods not being declined in value with the site plan as submitted without connectivity.
Deputy County Attorney Huffman stated that Ms. Jenkins’ statement that her client has an
access easement does alleviate her concern about there being an easement so it would be up to the
planning board and the county commissioners whether they think it is necessary that it be a publicly
dedicated easement. Ms. Huffman said she would like to have the applicant’s attorney provide
written documentation of that access easement via a legal opinion for the county’s files.
Ms. Jenkins stated she could submit the deeds and provide whatever the county needs. Ms.
Huffman stated the applicant would need to provide a legal opinion that there is an access
easement. Ms. Jenkins agreed to provide a legal opinion verifying that the applicant has an access
easement.
Board Member David Weaver stated if the applicant was to build this convenience food
store with just a one-way access to it, they would not be increasing the endangerment to the
surrounding neighborhood, but if there is the opportunity to reduce the endangerment to the
surrounding neighborhood that's presently there because there isn't adequate public or emergency
vehicle access, would that be a reason to find condition #1 is needed.
Deputy County Attorney Huffman commented as the board was having discussions, she
felt the need to remind them that this is a special use permit, not a conditional rezoning, and that
the board will have to look at the four findings and determine if the project meets or doesn’t meet
each of the findings. It appears from the discussions, the board could have a conversation about
the public health and safety in number one, and also perhaps the harmony in number four, but
board members will have to give specific reasons for their denial. Specifically, the standard is that
if you make a motion to deny, that the planning board cannot find that this proposal will not
materially endanger the public health or safety so you would not be able to say that the project will
not materially endanger. Ms. Huffman stated it was her legal opinion that the board will have to
find that the project will not materially endanger; not that the project not being there will diminish
the possibility. The board should discuss each of the findings. She thought everyone would agree
in regard to public health and safety that the condition is probably not an issue. There has been no
evidence one way or the other about injuring the property value. Mr. Cole and Mr. Rawl have
described some harmony issues, but the board would have to specifically discuss them in their
denial if they think they are sufficient.
Page 19 of 23
Hearing no other discussion, Chairman Girardot entertained a motion on the special use
permit.
Board Member Ted Shipley asked for a point of clarification on whether the staff’s
suggested condition #2, requiring a two-way vehicular connection be made to Raintree Road and
extend to Bump Along Road had been withdrawn.
Chairman Girardot replied that staff’s suggested condition #2 had not been withdrawn, but
a board member making a motion to approve could leave out that condition. She asked if Mr.
Schuler wished to address the inquiry on condition #2.
Current Planner Brad Schuler stated staff would like to see a two-way connection, but it is
the planning board’s decision. The board should listen to the advice provided by Deputy County
Attorney Huffman. In regard to the third condition about Bump Along Road and it being dedicated
for public use, if the applicant cannot dedicate it, then they cannot do that. Staff’s main concern
was to ensure that the public had access to Bump Along Road. There is still a remaining question
of whether it is the property owner that has that easement to their property or whether it is an
easement for the public to access that convenience store. Again, staff’s concern is that there be
some access from Market Street to Raintree Road that would allow for the interconnectivity and
would allow for the reduction of the emergency response time.
Mr. Shipley commented that condition #3 was potentially withdrawn, even though the
property owners have negotiated their own private easement for access to Market Street and the
folks along Bump Along Road have access to their homes. It is simply a matter of other cut-through
traffic for condition #3. Mr. Schuler explained it is related to cut-through traffic and also a
clarification of whether the public can utilize that road to actually get to the business.
Motion: Ted Shipley MOTIONED, SECONDED BY David Weaver, to recommend
approval as the planning board finds this application for a special use permit for a convenience
food store will not materially endanger the public health or safety, meets all required conditions
and specifications of the zoning ordinance, will not substantially injure the value of adjoining or
abutting property, and will be in harmony with the surrounding property, and is in general
conformity with the plans of development for New Hanover County.
Conditions:
1. Improvements required as part of the approved traffic impact must be completed prior to
issuance of a certificate of occupancy;
2. A two-way vehicular connection must be made to Raintree Road and extend to Bump
Along Road. This vehicular road must comply with the county's standards for private roads
and must be included within a 30-foot access easement that is dedicated for public use;
3. A 20-foot wide easement shall be dedicated to the county along market street for the
purpose of installing a future multi-use path or sidewalk in accordance with the
Wilmington-New Hanover County Comprehensive Greenway Plan;
4. The development must include bicycle parking facilities consisting of, at minimum, 4
bicycle parking spaces.
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5. Solid fencing and evergreen plantings be included in the buffer zone that is adjacent to
residential properties. (Accepted at the request of Chairman Girardot).
6. The portion of Bump Along Road adjoining the subject property must have an access
easement for public use to Raintree Road from Bump Along Road. (Mr. Shipley amended
to include this condition per input from Mr. Weaver to avoid the dedication of a public
right-of-way).
Chairman Girardot asked Ms. Wolf if those conditions were acceptable to the applicant.
Ms. Jenkins, attorney for the applicant, said she would like to speak to the conditions first. She
stated that she does not see the correlation between Condition #2, two-way connectivity, and
Condition #6 (formerly #3), the public easement, and public health and safety or that they are
necessitated by the applicant’s use of the property. She noted the TIA didn’t show that Alternative
#2 was needed and showed that Alternative #2 was as equally acceptable as Alternative #1. She
does not see a concern that is being addressed that comes from the ordinance and one of those four
requirements. She explained that this is not addressing a health and safety issue that her client is
causing or bringing by using this so she doesn’t feel that conditions #2 and #3 are appropriate
conditions. As far as accepting the conditions, they are not the property owner and she is not sure
it will be feasible for them to obtain a public access easement from the property owner. She noted
this is not the typical situation where you are dealing with someone who is looking for a rezoning
that actually owns the fee and can dedicate that public access. The board is asking the applicant
to negotiate for that public access easement over and above what they have done with the road
maintenance and she believes that is beyond the permissible scope of this review.
Ms. Wolf stated, confirmed by Attorney Jenkins, that the applicant would prefer to move
forward without conditions #2 and #3.
Chairman Girardot inquired if Mr. Shipley would like to comment in regard to those two issues.
Board Member Shipley stated that he withdrew his motion.
Chairman Girardot entertained another motion on the application.
David Weaver said he would like to put Mr. Shipley’s motion back on the table and address
what he thinks the issues are. By approving the special use permit, the board can require conditions
that are not strictly tied to the findings of fact. For example, if a condition would improve public
health and safety, it can be added as part of the approval of the special use permit.
Deputy Attorney Huffman stated if the board puts a condition on a special use permit, it is not
necessary that the applicant agree with it. If it is out there enough that the applicant wants to pursue
contesting the condition and can convince a judge that it didn’t have sufficient relation to the four
requirements, then that condition might go away. In her opinion, the condition related to the public
having some right to use Bump Along is sufficiently tied to the findings of fact. Mr. Weaver agreed
and stated the applicant must have some proof that there is an easement with the property owner
that would allow the use of that section of Bump Along Road by the customers of the convenience
food store. He also likes the connectivity provided by condition #2 and feels it will allow better
emergency vehicle access and will improve better connectivity to the residents of the Raintree
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neighborhood and will prevent them from contributing to a safety issue by getting on Market Street
to access the convenience food store. He stated he wanted to make it clear that they are not
requiring dedication of Bump Along Road as a public right-of-way.
Chairman Girardot stated that interconnectivity is a county policy and allowing unimpeded
access by emergency vehicles does come under health and safety. She announced that the original
motion was dead so if someone would like to put the same motion on the table, it will need to be
restated for the record.
Motion: David Weaver MOVED, SECONDED BY Ernest Olds, to recommend approval as
the Planning Board finds this application for a Special Use Permit to develop a convenience food
store meets the four required conclusions based on the findings of fact included in the staff
summary and:
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 with the plans
of development for New Hanover County.
Conditions:
A. The improvements required as part of the approved Traffic Impact Analysis must be
completed prior to issuance of a Certificate of Occupancy.
B. A two-way vehicular connection must be made to Raintree Road and extend to Bump
Along Road. This vehicular travelway must comply with the County’s construction
standards for private roads and must be included within a 30-foot access easement that
is dedicated for public use.
C. The portion of Bump Along Road adjoining the subject property must be able to be used
for public use for the convenience food store.
D. A 20-foot wide easement shall be dedicated to the County along Market Street for the
purposes of installing a future multi-use path or sidewalk in accordance with the
Wilmington/New Hanover County Comprehensive Greenway Plan.
E. The development must include bicycle parking facilities consisting of at minimum four
bicycle parking spaces.
F. Solid fencing and evergreen landscaping shall be installed within the buffer strips along
residential areas.
During discussion on the motion, Mr. Weaver asked if the applicant would be able to
negotiate with Ms. LeGwin for an easement to allow the public to access the convenience food
store from Bump Along Road. Patricia Jenkins, attorney for the applicant, stated they are in talks
with Ms. LeGwin now in regard to egress and ingress solely from Bump Along Road. By adding
that other condition of two-way with Raintree Road, they have not negotiated that and were not
intending to route folks from Raintree Road onto Bump Along Road. That would be a violation
of the current ingress and egress agreement. The county can’t route folks through the applicant’s
property onto her property. Ms. Jenkins said that issue is beyond the scope of the current
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negotiations with Ms. LeGwin and she can’t speak to whether or not Ms. LeGwin or the other
neighbors who now access Bump Along Road would be willing to now have another source of
traffic from Raintree Road. Board Member Weaver reiterated that the public access is part of his
condition and motion. Chairman Girardot stated perhaps the applicant would have time between
the planning board meeting and the county commissioners meeting to work out that detail with
Ms. LeGwin. Attorney Jenkins felt Mr. Weaver may need to revisit the wording of the condition
to include access to their property through Raintree Road. Mr. Weaver replied that they are
addressing the Raintree Road access by the applicant simply connecting to a publicly dedicated
right-of-way and providing two-way access through it. He said the applicant also needs to negotiate
with Ms. LeGwin for access along Bump Along Road for the public to use to access to the
convenience food store. He felt that chances are the public will not use Bump Along Road to get
onto Raintree Road. Ms. Jenkins commented that if the motion is worded that way, the easement
would have to encompass people passing through Raintree Road because someone could drive
through their property from Raintree Road and exit Bump Along Road on the easement. Mr.
Weaver said he would say it needs to encompass that, but he would not foresee anybody using the
Raintree Road access unless they want to access the convenience food store. Allen Pope
commented that that per the proposed site plan the applicant is already inducing Raintree residents
onto Bump Along Road so he wasn’t sure the attorney’s comment would have any different
bearing from what he is already proposing.
Chairman Girardot reminded the board about the hours of operation for the store, noting
she thinks the intention is to have a 24-hour facility. Hearing no additional comments, Chairman
Girardot called for a vote on the motion.
Upon vote, the MOTION PASSED 5-2. (Donna Girardot, Ernest Olds, Allen Pope, Ted
Shipley, and David Weaver voted for the motion. (Paul Boney and Jordy Rawl voted against the
motion).
Technical Review Committee Report (March 2017)
Current Planner Brad Schuler reported the New Hanover County Technical Review
Committee met twice during the month of March and reviewed three preliminary plats.
Westview at River Oaks
This was a re-approval of this performance residential subdivision, located at the 8000
block of River Road, which consists of 22 single-family residential lots. In a vote of 5-
0, the TRC reapproved the plan for two years with conditions as noted in the planning
board packet.
Oaks at Anchors Bend
This performance residential development was the subject of an approved rezoning
within the past year along Middle Sound Loop Road. The subdivision has 39 lots and
there was a condition that it must be built in accordance be with our Low Impact
Development standards. With a vote of 5-0, the Technical Review Committee approved
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both the low impact component and the development itself with some conditions as
noted in the planning board packet.
Cane Garden Village
This residential subdivision located at the 4400 block of Gordon Road consists of 38
lots and was approved with a vote of 5-0 by the TRC with some conditions as noted in
the planning board packet.
Other Business
David Weaver, who serves at the TRC Chairman, stated he will be unable to attend the
April 26, 2017 TRC meeting and inquired if another planning board member would be willing to
serve as the TRC Chair at that meeting. Chairman Girardot will check her calendar to determine
if she would be available to serve in that capacity.
Chairman Girardot announced a joint meeting of the Board of County Commissioners and
the Planning Board will be held on April 27, 2017 from 2:30pm to 4pm in the Lucie Harrell
Conference Room located in the New Hanover County Government Center to receive an overview
by the consultant, LSL Planning, on the beginning of the Unified Development Ordinance process.
Planning Manager Ken Vafier added that a Public Workshop on the UDO process will also
be held on April 27, 2017 from 6:00 p.m. to 8:00 p.m. at the New Hanover County Government
Center and will also be publicized.
With no other items of business, Chairman Girardot adjourned the meeting at 7:15 p.m.
Respectfully submitted,
______________________________________
Chris O’Keefe, Planning & Land Use Director