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2003-01-06 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 444 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, January 6, 2003, at 5:30 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, NC. Members of the Board present were Chairman Ted Davis, Jr; Vice-Chairman Robert G. Greer; Commissioner Julia Boseman; Commissioner William A. Caster; Commissioner Nancy H. Pritchett; County Manager, Allen O’Neal; County Attorney, Wanda M. Copley; and Deputy Clerk to the Board, Teresa P. Elmore. Chairman Davis called the meeting to order and welcomed everyone present. He requested persons with cell phones or pagers to cut off the equipment to prevent being disruptive during presentations and deliberations by the Board of County Commissioners. INVOCATION AND PLEDGE OF ALLEGIANCE Kenneth McAllister, Associate Pastor, The Rock of Wilmington, gave the invocation. Commissioner Pritchett led the audience in the Pledge of Allegiance to the Flag. APPROVAL OF CONSENT AGENDA Chairman Davis asked if any member of the Board would like to discuss or remove an item from the Consent Agenda. After hearing no comments, Chairman Davis called for a motion to approve the items on the Consent Agenda. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Boseman, to approve the items on the Consent Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes The Commissioners approved the Minutes of the Regular Meeting held on December 2, 2002, as presented by the Clerk to the Board. Adoption of Resolution Rejecting the Proposal Received for RFP 03-00063 for the Sale of Fill Material for the Parks Department The Commissioners adopted a resolution rejecting the proposal received from Cape Fear Paving in response to RFP 03-00063 for the sale of fill material at Smith Creek Park due to a lack of interest at this time. The County purchased the 93 acre property from the State and plans to develop the land as a park by selling excess sand on the property. RFP packages for removal of the sand were sent to 11 different contractors, but only one proposal was received. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVIII, Page 5.1. Approval to Close Cape Fear Museum During Renovation Project The Commissioners approved closing the Museum to the public from January 28, 2003 through February 7, 2003, during the renovation projects at the museum when the heat will be turned off. Also approval was granted to extend the closing if needed and to take appropriate actions to provide high quality and safe customer service during the construction period, including additional closings or fee adjustments. Approval of 2003 Learning Opportunities Grant for the Cape Fear Museum The Commissioners approved the application by the Cape Fear Museum for an Institute of Museum and Library Services (IMLS) 50/50 2003 Learning Opportunity Grant of $52,200 over a three year period. The match of $16,000 will be from in-kind staff salaries associated with the exhibit and $6,000 of budget for the first year reduced th to $5,000 in the subsequent years. The grant will fund three years of a proposed changing exhibit on the 20 century. The County Manager was authorized to accept the grant if awarded and to approve the associated budget amendment. Approval of Grant Application to the North Carolina Department of Health and Human Services, Division of Public Health, Office of Public Health Preparedness and Response The Commissioners approved the grant application by the Health Department to the Office of Public Health Preparedness and Response in the Epidemiology Section in the amount of $115,950 to upgrade public health preparedness and response, as recommended by the Board of Health. The County’s proposal will include equipment and supplies to upgrade public health preparedness for and in response to bio-terrorism, other outbreaks of infectious diseases, and other public health threats and emergencies. No positions are included, no County match is required, and there are no requirements to continue when the grant ends. Approval of Budget Amendments for the Health Department The Commissioners approved the following Budget Amendments: Budget Amendment #03-0091-Public Health/Bio-Terrorism AdjustmentDebitCredit Bio-terrorism Preparedness$3,000 NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 445 Budget Amendment #03-0091-Public Health/Bio-Terrorism (Continued) AdjustmentDebitCredit Training & Travel$3,000 Explanation: To budget additional State Bio-terrorism Grant funds to be used for the education and training of public health personnel and their planning and response partners. Budget Amendment #03-0092-Public Health/Child Care Health Consultant AdjustmentDebitCredit Child Care Health Consultant$5,068 Salaries and Wages$3,714 Medical Insurance Expense$ 924 Printing Charges$ 200 Departmental Supplies$1,220 Training & Travel$ 990 Explanation: To adjust budget to reflect the decrease in the amount of State Child Care Health Consultant Grant funds received. An amount of $58,733 was budgeted, but $53,665 was actually received. Budget Amendment #03-0093-Public Health/Health Check AdjustmentDebitCredit Partnership for Children Grant$20,250 Salaries and Wages$17,212 Social Security Taxes$ 1,205 Retirement-Local Govt. Employee$ 605 Long-Term Disability Insurance$ 102 Printing Charges$ 200 Departmental Supplies$ 376 Employee Reimb./Uniforms$ 250 Training & Travel$ 300 Explanation: To budget additional State Partnership for Children Grant funds for the Health Check Program. Total grant funds received for FY 02-03 are $40,500. Budget Amendment #03-0094-Public Health/Partnership for Children AdjustmentDebitCredit Partnership for Children Grant$71,217 Salaries and Wages$60,905 Social Security Taxes$ 4,263 Retirement-Local Govt. Employee$ 2,436 Long-Term Disability Insurance$ 68 Telephone Expense$ 169 M & R - Equipment$ 100 Printing Charges$ 250 Departmental Supplies $ 1,000 Dues & Subscriptions$ 26 Employee Reimbursements$ 500 Employee Reimb./Uniforms$ 500 Training & Travel$ 1,000 Explanation: To budget additional State Partnership for Children Grant funds for the Smart Start Program. Total funds received for FY 02-03 are $153,967. Budget Amendment #03-0095-Public Health/Partnership for Children AdjustmentDebitCredit Children's Special Health Services$3,777 Salaries and Wages$1,000 Medical Insurance Expense$2,777 Explanation: To adjust budget to reflect the decrease in the amount of State Children's Special Health Services Grant funds received. An amount of $12,491 was budgeted, but $8,714 was actually received. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 446 Budget Amendment #03-0097-Public Health/Environmental Health AdjustmentDebitCredit Duke University Nicholas School of the Environment and Earth Sciences$7,000 Departmental Supplies$4,010 Computer Expenses$2,990 Explanation: To budget additional Duke University funds to be used for computer hardware/software and related training for establishing a Geographic Information System within Environmental Health. A previous award of $18,000 brings total award to $25,000. Budget Amendment #03-0086-Human Service Transportation Adjustment Debit Credit DOT-Administrative-Federal$171,338 DOT-Administrative-State$115,544 DOT-Vans$ 18 Salaries and Wages$ 17,689 Contract Services$ 73,465 Maintenance & Repair-Equipment$ 900 Printing$ 900 Training and Travel$ 3,100 Insurance and Bonds$ 3,100 Explanation: To adjust budget to actual amount of funding from NCDOT for FY 02-03. Budget Amendment #2003-22-Water and Sewer/Spring Branch Interceptor AdjustmentDebitCredit Capital Project Expense$103,915 Transfer to Other Funds/Sewer$103,915 Explanation: For accounting purposes only and to close Fund 847. CONSIDERATION OF REQUEST BY CAPE MEDICAL TRANSPORT, INC. FOR A FRANCHISE TO PROVIDE CONVALESCENT AMBULANCE TRANSPORT IN NEW HANOVER COUNTY Deputy County Manager Andrew Atkinson reported that the applicant, Cape Medical Transport, Inc., is requesting a franchise for non-emergency ambulance service for routes beginning and ending in New Hanover County. They fulfilled the requirements of the application in a satisfactory manner, except they provided tax returns instead of audited financial statements. The applicant’s state license has been suspended in New Hanover County until such time it is granted a county franchise. The state license was revoked due to allegations of under staffing in ambulances, and it has been reinstated with a revocation stayed under the condition that it has no further staffing violations. The County has been engaged in litigation with the applicant due to its operation without a county franchise. Staff felt that Douglas Kirk, Chief Operating Officer, showed a clear disregard for the County’s authority, especially in conjunction with the disciplinary action taken by the State. Staff’s recommendation was to deny the request for a franchise. Deputy County Manager Atkinson explained that the County’s franchise ordinance does allow the Board to grant a franchise if the County finds that the public convenience and necessity require the proposed ambulance service. However, Dr. William K. Atkinson, President and CEO of New Hanover Regional Medical Center (NHRMC), has notified the County that EMS is willing and able to meet the County’s non-emergency transportation needs as granted in the exclusive franchise to the medical center. Based on this letter, Staff does not feel that the franchise should be granted to Cape Medical Transport. Chairman Davis asked the Finance Director if the tax return satisfies the criteria for the requirement of an audited financial statement. Finance Director Shell responded that the tax returns usually would verify the financial position of a company’s operation as attested to the Internal Revenue Service. In this case, the tax returns did not include the balance sheet or the corporate tax returns and he was unable to use the information to meet the criteria. Exhibit E was referenced as audited financial statements, but nothing was provided to him that he could use to form an opinion of the financial position of the company. Mr. Stephen E. Culbreth, attorney representing the applicant Cape Medical Transport, presented the request for the franchise application. He submitted a letter of support from Patricia Voll whose invalid mother was unable to receive medical transport from NHRMC because she did not qualify as a medical emergency. A letter from Gloria Yates, nursing supervisor at Cypress Point Rehabilitation Center, told of a patient who was transported by Cape Medical after 7:00 p.m. when their van service had closed for the day. Another letter from Cypress Pointe Rehabilitation commended the service provided by Cape Medical. While it is true that Cape Medical has performed the service without a franchise, the health care business has a need for a service to transport patients to dialysis who may not meet the qualifications for a medical transport. Cape Medical transports over 80 patients to dialysis each month. In the last six months NHRMC has made twelve calls to Cape Medical to provide transportation, as have Mariner Health Care and Hospice, NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 447 which are both affiliated with NHRMC. Mr. Culbreth stated that Cape Medical has fully equipped units with trained staff. No complaints have come from anyone using their services, but another ambulance service provider has made complaints. As New Hanover County increases its aging population with almost 20 nursing homes, other choices in medical transportation should be available for citizens. A letter from Patty Ostapowicz of Hermitage House supported a franchise for Cape Medical because they provide a satisfactory service at a reasonable price. Dr. Jerry Pence’s letter supports ambulance transport of wheel-chair patients instead of vans because vans have no way to secure a patient in a wheel chair. Dr. Pence lost a sister who was transported in a van when a near collision fractured her femurs which led to her death. Mr. Culbreth spoke on the concerns of judges hearing the case that Articles in the NC Constitution refer to “exclusive emoluments or privileges” as condemning monopolies. He felt that the same was true of monopolies that are created by statutes for non-profit entities because competition is an incentive to lower prices and provide better service and management. Competition results in a more courteous and attentive service and a more diligent search for improved methods. The federal government is concerned with hospitals having exclusive franchises and he expressed concern that the closest competing hospital was in Brunswick County. Since the Commissioners have established a monopoly by giving exclusive rights to operate ambulances in New Hanover County to NHRMC, a rate board should be established to set rates. A better alternative is to ignore the franchise requirement. Cape Medical is not being defiant. There is a need for additional non-emergency transport and they have a record of serving the community in a satisfactory way. He urged the Board to provide the citizens of New Hanover County and the aging population a reasonably priced alternative and an opportunity of a choice. In regards to the required financial statements, Mr. Culbreth explained that Cape Medical had discharged its bookkeeper and was unable to compile complete information. However, Mr. Kirk was present to respond to any questions. In opposition, Mr. John Coble, attorney representing NHRMC, requested the Board to deny the franchise application. He disagreed with Mr. Culbreth in calling the franchise a monopoly since Cape Medical is charging the same rate as NHRMC. In the litigation by the County and the hospital vs Cape Medical, Mr. Kirk responded in his deposition that Cape Medical transported more than 3,500 patients and that he billed the patient’s insurance provider, medicare, or medicaid for the service. Government regulated entities have determined the amount to be paid for medical transportation and if it is a medical necessity to use a van or ambulance to transport the patient. In response to the letters that Mr. Culbreth presented to the Board, Mr. Coble responded that the County granted the hospital an exclusive ambulance franchise with the exception of including Medical Transportation Specialist (MTS) as a non- emergency transport provider. Under a franchise agreement in effect since 1987, MTS operated in New Hanover County until this past spring. NHRMC started transporting non-emergency patients at the end of 2001 and they have adequate equipment to provide all ambulance services. In regards to Mr. Culbreth saying that the hospital referred non-emergency calls to Cape Medical, Mr. Coble said that he would need to know the circumstances before responding. To the hospital’s knowledge it has not occurred. Despite efforts made during the last 8 months to inform employees of the procedure for non-emergency service, he could not say that nobody has referred patients to Cape Medical. However, the appropriate response from Cape Medical should have been to say that they are not authorized to make transports within New Hanover County. To say that some incidents have occurred when approximately 2,100 patients have been transported by the hospital since September does not mean NHRMC is not addressing the needs of the County. Dr. Atkinson has submitted a letter to assure the County that the hospital is willing and able to fulfill all ambulance service needs within New Hanover County. Before the hospital took over the ambulance service, the County was spending $2 million a year. The hospital’s EMS has been recognized by the State for providing pioneering steps in services to the citizens. In a letter from Drexdal Pratt, Chief of the Emergency Medical Services of the Department of Health and Human Services, dated November 1, 2002, NHRMC was notified that they were the first Model EMS System approved in North Carolina. He went on to say that their pioneering efforts will not only benefit New Hanover County, but will serve to move the state-wide system forward. Mr. Coble pointed out that the Commissioners had made the decision to give the franchise to the hospital for the betterment of the public. He said Cape Medical is rogue player who has refused to adhere to the known rules adopted for New Hanover County. Mr. Kirk knows that each county requires a franchise and that an application is required because he has been in the EMS business for 35 years. Despite the fact that no county franchise had been granted to Cape Medical Transportation, Mr. Kirk has continued to operate in New Hanover County since 1999. Cape Medical’s state license was revoked because they did not have a County franchise and patients were transported without proper staffing requirements. The Board should consider whether Cape Medical is operating for the betterment of its citizens or providing care for the indigent as the hospital does. He asked whether NHRMC’s Model EMS System status from the State would be in jeopardy if Cape Medical continues to operate. Chairman Davis asked Ed Woodard, Chief of Emergency Medical Services for NHRMC, if the public convenience and necessity require the proposed ambulance service of Cape Medical and if NHRMC is adequately providing this service to the County. Chief Woodard responded that no additional ambulance service is needed in the County and that NHRMC is fully capable of providing the service. When additional service is required, NHRMC will add more equipment and staffing to meet the needs. He was unaware of any circumstances where EMS refused to provide service, and he offered to investigate and respond to those complaints if he is given the date and time of the incidents. During this fiscal year, EMS will respond to 25,000 calls, of which 19,000 will be 911 emergencies, 3,000 regional critical care transports, and 3,000 basic transports. Their policy has been to not refuse any calls. NHRMC provides a great amount of indigent care and spends more than $5 million a year for the EMS operations. They have proven that they can and will provide quality service. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 448 Commissioner Pritchett asked if stroke or paralyzed patients in nursing homes qualify as medical emergencies. Chief Woodard responded that emergency calls come through the 911 system and EMS never refuses to respond to a 911 call. Frequent emergency calls from nursing homes, doctor’s offices or other facilities come through the 911 Center. Routine transport calls come through the non-emergency number in the Vitalink office. The Vitalink dispatchers take the information and determine if the call is an emergency. Emergency calls are referred to the 911 service which notifies the hospitals emergency response units. Deputy County Manager Atkinson explained that a call may not require an ambulance to be used, and sometimes medicare, medicaid, or the insurance provider will not pay for the transport. A patient in a nursing home who is wheel chair bound can be transported by other means than an ambulance. This type transport does not require a franchise. But if the ambulance transport is medically necessary, then EMS ambulances should provide the service. If a patient does not require a medical transport, a taxi service or van service can be used. The nursing home is responsible for providing transportation services for its patients including after 5:00 p.m. pick up for non-medical transports. Chief Woodard responded that often the hospital will provide a non-medical transport for the convenience of a patient when they are discharged. However, the County operates a van transportation services through a private company to handle non-medical transports. Van transportation is not covered by the franchise ordinance. Mr. Culbreth rebutted saying that there is a hole in the system when medical patients are told a medical transport is not necessary. Cape Medical provides transportation for these patients. Mr. Kirk does not require any money up front from the patients and he files a medical claim. If the insurance does not pay, the expense comes out of his pocket. Recently he received a call from NHRMC to take a dialysis patient home after Vitalink had refused to transport the patient. Cape Medical is wanting to respond to these patients and to nursing homes which require additional transportation services. Mr. Culbreth explained that in response to Mr. Pratt’s investigation, an incident did occur when a patient was transported as a courtesy due to extenuating circumstances. The incident was addressed and has been rectified. The decision by the State Office of EMS to revoke the license was overturned by an administrative law judge. The State appealed the decision to Judge Cobb, who reversed the State’s decision in a lengthy order. The State EMS is appealing the decision in Raleigh. Every time a judicial review has occurred, the action to revoke Cape Medical’s privileges has been overturned. There is a hole in the system when someone is needing a medical transport. If a patient is needing dialysis, he will not call 911 for transportation, but he will use a van service. As Dr. Pence’s letter pointed out, transporting wheel-chair patients in a van is risky. Cape Medical can provide this service without a cost to the County. If the hospital is unable to provide transportation, Mr. Kirk is willing to do so. If the insurance provider does not pay for the service, he has made the business decision to absorb the expense. Commissioner Caster stated that this is the same situation the Board faced at the meeting held on December 16, 2002. Coastline Care was denied a franchise because the County had awarded an exclusive franchise to NHRMC. The County has taken Cape Medical to court because they were operating without a franchise. He felt the Board should deny the franchise to Cape Medical based on its decision in denying a franchise to Coastline Care. Chairman Davis expressed concern that the financial information was not provided and that the applicant continued to do business in the County when he knew he did not have a franchise. Commissioner Caster expressed concern that Cape Medical Transport may have caused MTS to go out of business. MTS had been grandfathered in with a franchise when the County transferred the EMS service to the hospital. Commissioner Pritchett noted that Assistant County Manager Melvin was to work with Coastline Care to see if they can provide some of the non-emergency transportation in the city or county. It may mean that the whole system will need to be looked at to determine who should provide medical transports. She expressed concern with the legality of the exclusive franchise. Commissioner Caster explained that a person at home needing to go for dialysis may not know who to call, but a nursing home providing a service for its patients should know who to call and whether a fully equipped ambulance or a taxi service is needed. It is the nursing home’s responsibility to provide transportation for its patients, including the transport of patients after 5:00 p.m. when normal van service may not be operating. Deputy County Manager Atkinson informed the Board that he had called each nursing home to notify them that Cape Medical did not have a franchise to transport non-emergency patients in the county. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Greer, to deny the application from Cape Medical Transport, Inc. for a franchise to provide convalescent ambulance transport in New Hanover County based on being consistent with the Board’s prior decision of denying a franchise application from Coastline Care, Inc., as the public convenience and necessity does not require the proposed ambulance service, the applicant did not provide sufficient financial information, and the applicant operated in the County without authority of a franchise. Upon vote, the MOTION CARRIED UNANIMOUSLY. Exhibits presented to the Board are on file in the County Attorney’s Office. PUBLIC HEARING TO CONSIDER AREQUEST BY SHELBY LOLLIS TO REZONE APPROXIMATELY 2.90 ACRES OF PROPERTY LOCATED AT 2623 NORTH COLLEGE ROAD, ON THE WEST SIDE, SOUTH OF NORTHCHASE DEVELOPMENT, FROM R-15 RESIDENTIAL TO O&I OFFICE AND INSTITUTIONAL (#Z-754, 11/02) NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 449 Chairman Davis opened the Public Hearing and requested the Planning Staff to present the rezoning petition and summary. Planning Director Hayes presented maps and photographs of the subject property and surrounding areas showing the current uses. He reported that the petitioner is requesting a rezoning from R-15 residential to O&I Office and Institutional. The property has approximately 200 feet of frontage on North College Road and is located between a small O&I District established in 1991 and the PD District established for NorthChase. The adjacent land uses that front North College Road are office and institutional type uses; however, the western portion of the property is adjacent to an existing residential section of NorthChase and residentially zoned agricultural land. The petitioner is currently operating a small antique business as a home occupation. Across North College Road from the subject property is a B-2 Highway Business Zoning District that runs almost half a mile south to the Murrayville Road intersection. There is a small commercial node at the intersection of North College and Murrayville; however, many of the existing commercial buildings are vacant. The most recent addition to this B-2 District was in 1998 and the property continues to be used for residential duplexes. Laney High School is also located to the north and east across North College Road. The policies of the Comprehensive Plan promote development within the urban services boundary where essential urban services exist. The subject property is served by public water and sewer. Since the O&I zoning classification is typically used as a transition between residential uses and more intense commercial uses, it seems an appropriate classification for the frontage of the property where there are existing institutional type uses. Staff recommended rezoning just the front parcel which is approximately 1.6 acres. The petitioner and her real estate agent presented the request to rezone 2.90 acres from R-15 Residential to O&I Office and Institutional at the Planning Board meeting on December 5, 2002. No one spoke in opposition; however, one resident of NorthChase expressed concern about the number of vacant commercial buildings within a four mile radius of the subject property. The Planning Board discussed staff’s recommendation, the depth of the rezoning, and the depth of the commercial zoning on nearby properties. The petitioner felt the split zoning would make the property difficult to sell. Ultimately the Planning Board voted 5-1 to recommend approval. The member voting in opposition agreed with Staff’s concerns about the encroachment and the impacts it may have on the existing homes that abut the property in the rear portion. The request is consistent with the land use plan because it is considered an extension of the Murrayville Road intersection. There are institutional type uses in R-15 Residential areas, and there is some commercial zoning although it is being used for residential purposes. Commissioner Pritchett asked if the property could be accessed any other way besides North College Road. Planning Director Hayes responded that the only access to the rear of the property is through the drive way to the existing house on the front property. An easement or driveway on the front property could provide access to the rear property if a home was to be built on the rear property. Chairman Davis asked Ms. Shelby Lollis, the petitioner, if she was aware that if the Board denies the request, the petition cannot be resubmitted for 1 year. Ms. Shelby Lollis, the petitioner and property owner, responded that she realized if the zoning request was denied, she would not be allowed to submit another petition for one year, and she requested the Board to proceed. Ms. Lollis stated she purchased the 2.9 acres seven years ago before substantial growth had occurred in the area. Since that time extensive commercial development and traffic has occurred along North College Road. The property across the street was zoned Business for a proposed shopping center. The NorthChase office and daycare center are located on one side and a barber shop and clinic on the other side. A large wooded buffer exists along the back portion of the lot next to the houses. A 40 foot easement containing Black Swamp Creek is between her property and the barber shop. If she had to place a driveway or an easement on her property for access to the rear parcel, another 35 feet would be taken from the 211 foot frontage. Although she had no specific design plans, she felt a nice office complex with ample parking would require the whole property. She requested the Board to rezone all 2.9 acres because the back parcel would not be suitable for a new home and she would not be able to attract a buyer for the property. Mr. Mike Nadeau, of Creative Properties and representing Ms. Lollis as her real estate agent, spoke in support of the rezoning. He presented an aerial photograph showing a 50 foot wooded buffer along the rear parcel. The property was intended to buffer the adjacent subdivision from commercial encroachment, but the 2.9 acres is a reasonable size site for an office complex. This section of North College Road has six physician offices and a proposed shopping center across the street. Black Creek Swamp is a wide fast-moving ditch along the boundary of Ms. Lollis’s property which creates a significant natural buffer. The back wooded area is wet with several ditches draining to one area. A drainage swale is next to the NorthChase subdivision. The property is an isolated area and suitable for commercial development. Commissioner Pritchett asked Planning Director Hayes whether the rear parcel could be left R-15 and be used for a parking lot if the front portion is zoned O&I. Planning Director Hayes responded that the Board would have to grant a Special Use Permit for parking. Chairman Davis asked what buffering would be required for the whole tract if the property is rezoned to O&I. Planning Director Hayes responded that when commercial uses such as an office complex are located next to residential property, a setback is based on the proposed building height. In this area a buffer should be 2.75 times the building height. A ten-foot high building would require a 27 ½ foot buffer and a 20 foot building would mean about NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 450 a 50 foot buffer. Buffering and landscaping already exists on the properties of the homes in the subdivision. There being no further comments, Chairman Davis closed the Public Hearing. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Greer, to rezone the entire 2.90 acres of property located at 2623 North College Road from R-15 Residential to O&I Office and Institutional. Chairman Davis asked if sufficient buffering exists to address Staff’s concerns about the encroachment on the residential area behind the property if all of the property is rezoned to O&I. Planning Director Hayes responded that the County’s regulations are sufficient in the requirement of additional buffering, but it would depend on the ultimate use of the property. An office building with a parking lot has very little impact. The additional buffering with the vegetation on the residential property would mitigate a lot of the concerns. However, a better scenario is to rezone the front parcel for commercial uses and leave the rear portion zoned residential. The larger tract surrounding the property will most likely be developed for residential purposes. Encroachment on NorthChase would probably come on the south side as access is generated to the tract from College Road. Commissioner Caster felt that the large amount of vegetation between the properties, the setback requirement on the petitioner’s property, and the Black Swamp Creek drainage area would be sufficient buffers for the property. The front parcel of 1.6 acres seems too small for an office complex when requiring an easement to the back parcel, and the back 1.3 acres seems unsuitable for residential use when access is through the commercial property. Commissioner Boseman asked what O&I use would encroach on the residential area. Planning Director Hayes responded that a special use permit for a convenient store could be requested. A rezoning would open up the property for additional changes in the future. The County’s O&I District allows only office and institutions with no retail use or car repair. It is a tightly controlled zoning classification, usually with businesses that operate during normal working hours. It mostly consists of doctor, dentist, and professional offices having the least impact on a neighborhood. Vote : Upon the call for the vote to approve the rezoning request, the MOTION FAILED 2 TO 3. Commissioner Boseman, Commissioner Pritchett, and Chairman Davis voted in opposition. PUBLIC HEARING TO CONSIDER REQUEST BY AMMONS DEVELOPMENT GROUP TO REVISE THE MASTER LAND USE PLAN FOR THE NORTHCHASE PLANNED DEVELOPMENT DISTRICT FOR PROPERTY LOCATED IN THE CORPORATE DRIVE SOUTH SUBDIVISION FROM INSTITUTIONAL USES TO COMMERCIAL AND LIGHT INDUSTRIAL USES (#Z-231, 12/02) Chairman Davis opened the Public Hearing and requested the Planning Staff to present the request. Planning Director Dexter Hayes presented maps and photographs showing the uses in the development. The subject property was zoned PD Planned Development in July 1985. Planned Development Districts are reviewed and approved based on a Master Land Use Plan, which establishes the uses in specific areas of the project. Through the past 17 years the NorthChase PD District has been developed according to the original Master Land Use Plan with few modifications. The petitioner is requesting a modification of one section of the Master Land Use Plan from Institutional Uses to Industrial and Commercial Uses. The proposed change is adjacent to a developing industrial section of the Master Land Use Plan. The Land Classification for the development is Urban Transition. The purpose of the Urban Transition class is to provide for future intensive urban development on lands that have been or will be provided with necessary urban services. The location of these areas is based upon land use planning policies requiring optimum efficiency in land utilization and public service delivery. Residential development can exceed 2.5 units per acre within the Urban Transition area provided the development is adequately designed to be compatible with existing and proposed surrounding land uses and is served by adequate public facilities. Comprehensive Plan policies promote the establishment of industrial locations where there is good access to markets and suppliers and within the urban services boundary where essential urban services exist. The subject property is served by public water and sewer. Since the proposed modification is consistent with the existing uses nearby, it would be consistent with the comprehensive plan and generally consistent with the original Master Land Use Plan for NorthChase. Planning Director Hayes reported that Mr. Andrew Ammons presented his request at the Planning Board meeting held on December 5, 2002, explaining the request and giving some background and history of the project. No one spoke in opposition. Staff recommended approval and the Planning Board voted 6-0 to approve the request. The request does bring some consistency with the development as it is occurring as there were some discrepancies between the approved subdivision and the original land use plan. Chairman Davis asked if anyone present would like to comment. Mr. Robert Fullerton, spokesman for Ammons Development Group, stated that Mr. Ammons was out of the State and unable to attend the Commissioners meeting. On behalf of Mr. Ammons, he requested the Board to approve the revision. Commissioner Caster and Commissioner Boseman requested to be recused from voting since they both own properties in the NorthChase area. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 451 Motion : Chairman Davis MOVED, SECONDED BY Commissioner Pritchett, to recuse Commissioner Caster and Commissioner Boseman from voting. Upon vote, the MOTION CARRIED UNANIMOUSLY. There being no further comments, Chairman Davis closed the public hearing. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to approve the request by Ammons Development Group to revise the Master Land Use Plan for the NorthChase Planned Development District for property located in the Corporate Drive South Subdivision from Institutional Uses to Commercial and Light Industrial Uses. Upon vote, the MOTION CARRIED 3 TO 0. BREAK Chairman Davis called a break from 7:12 p.m. to 7:22 p.m. PUBLIC HEARING TO CONSIDER A REQUEST FROM THE ROCK OF WILMINGTON CHURCH TO LOCATE A CHILD DAYCARE FACILITY FOR 103 CHILDREN AS PART OF THE CHURCH FACILITIES IN AN R-15 RESIDENTIAL ZONING DISTRICT LOCATED AT 5301 SIDBURY ROAD NEAR THE INTERSECTION OF DAIRY FARM ROAD (S-494, 12/02) Chairman Davis opened the Public Hearing and announced that the special use process requires a quasi- judicial hearing; therefore, any persons wishing to testify must step forward to be sworn in by the Deputy Clerk. The following persons were sworn in: Dexter Hayes Bryan McGee Planning Director Dexter Hayes presented photographs and maps of the area and the site plan for the development. He reported that Pastor McGee from the Rock of Wilmington Church, presented the request for a daycare facility for 103 children in the new church at the Planning Board meeting held on December 5, 2002. The new church is under construction at 5301 Sidbury Road near the intersection of Dairy Farm Road. No one spoke in opposition. The Planning Board voted 6-0 to approve the permit as requested. Planning Director Hayes entered the following findings into the record: 1. The Board must find that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The subject property is located within the Castle Hayne VFD. B. The site has direct access to Sidbury Road (SR 1336) which is classified by the 1999 Thoroughfare Classification Plan as an arterial road. C. The site is served by County sewer and private water. D. The child daycare is proposed within the church building which is currently under construction. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The subject parcel is zoned R-15 Residential. B. Child daycare facilities are permitted by special use permit in the R-15 Residential Zoning District. C. Plans for landscaping and buffering have been approved by the Zoning Enforcement Department. 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 surrounding area is predominantly rural with some agricultural uses occurring nearby. B. One parcel on the south side of Sidbury Road across from the subject property is zoned I-2 Heavy Industrial. C. Cape Fear Community College and Interstate 140 are under construction nearby. 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 of New Hanover County. A. The site is classified as resource protection by the New Hanover County Comprehensive Plan. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. B. Other churches throughout the County operate daycare facilities. C. The facility can accommodate up to 103 children. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 452 Chairman Davis asked the petitioner if he agreed with the findings of fact as presented by the Planning Director. Mr. Bryan McGee, Pastor of the Rock of Wilmington Church, concurred with the findings of fact as presented by Staff. He noted that the church does have plans for a school on the property, which does not require a special use permit. He requested the Board to grant the permit. Chairman Davis closed the Public Hearing. Motion: Commissioner Boseman MOVED, SECONDED by Commissioner Caster, to approve the request for a special use permit by the Rock of Wilmington Church to locate a child daycare facility for 103 children in the church being constructed at 5301 Sidbury Road in an R-15 Residential Zoning District based upon the evidence and findings of fact concluding that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved; the use meets all required conditions and specifications of the Zoning Ordinance; the use will not substantially injure the value of adjoining property or abutting property or that the use is a public necessity; and 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. In discussion, Commissioner Pritchett asked if the proposed use is in keeping with the previous plan presented to the Board. Pastor McGee responded that it was the same plan presented in the church’s request to the Water and Sewer District to construct a private wastewater line and pump station on North College Road. Vote : Upon the call for the vote to grant the special use permit, the MOTION CARRIED UNANIMOUSLY. A copy of the Special Use Permit is hereby incorporated as a part of the minutes and is contained in SUP Book III, Page 19. PUBLIC HEARING TO CONSIDER A REQUEST BY ALPHA OMEGA HEALTH, INC. FOR A SPECIAL USE PERMIT TO LOCATE A CHILD DAYCARE FACILITY FOR 25 CHILDREN IN AN I-1 LIGHT INDUSTRIAL ZONING DISTRICT LOCATED AT 8114 MARKET STREET (S-495, 12/02) Chairman Davis opened the Public Hearing and announced that the special use process requires a quasi- judicial hearing; therefore, any persons wishing to testify must step forward to be sworn in by the Deputy Clerk. The following persons were sworn in: Dexter Hayes Melissa Morris Planning Director Dexter Hayes presented photographs and maps of the area for the proposed daycare. He reported that a representative from Alpha Omega Health Inc. presented the request for a child daycare for 25 children at the Planning Board meeting held on December 5, 2002, and explained that the use is consistent with other health care type uses in this I-1 district. No one spoke in opposition. The Planning Board voted 6-0 to approve the permit as presented. He entered the following findings of facts into the record: 1. The Board must find that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The subject property is located within the Ogden VFD. B. The site has direct access to Market Street (U.S. 17) C. The site is served by County water and sewer. D. The proposed use will occur in an existing building. 2. The Board must find that the use meets all required conditions and specifications of the zoning ordinance. A. A play area with a 4’ high fence is proposed on the north end of the building. B. Minimum landscaping and buffering has been installed for the existing office park. C. No new buildings are proposed. 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 use is within an existing office park. B. The building is located in the center of an I-1 Zoning District. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 453 C. Child daycare is permitted by special use permit in the I-1 District. 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 site is classified as resource protection by the New Hanover County Comprehensive Plan. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. B. Several policies in the comprehensive plan support establishing programs for elderly, special needs, and children. C. The facility is convenient to nearby businesses. D. The site can accommodate the proposed 25 children. Chairman Davis asked the petitioner if she agreed with the findings of facts as presented by the Planning Director. Ms. Melissa Morris, representative of Alpha Omega Health, Inc., stated that she concurred with the findings of fact and she requested the Board to grant the special use permit. Chairman Davis closed the Public Hearing and called for a motion from the Board. Motion : Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to approve the request by Alpha Omega Health, Inc. for a special use permit to locate a child daycare facility for 25 children in an I-1 Light Industrial Zoning District located at 8114 Market Street, based upon the evidence and findings of fact concluding that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved; the use meets all required conditions and specifications of the Zoning Ordinance; the use will not substantially injure the value of adjoining property or abutting property or that the use is a public necessity; and the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the Special Use Permit is hereby incorporated as a part of the minutes and is contained in SUP Book III, Page 19. MEETING RECESSED TO HOLD A REGULAR MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Chairman Davis convened from Regular Session at 7:25 p.m. to hold a meeting of the New Hanover County Water and Sewer District. Chairman Davis reconvened to Regular Session at 7:28 p.m. NON-AGENDA ITEMS Chairman Davis announced that time had been reserved to allow the public to present an item that was not listed on the regular agenda. He requested all persons speaking to limit their remarks to three minutes. Susi Hamilton, Executive Director of DARE, Inc., spoke concerning the Board’s further consideration of moving additional County offices from the downtown area. She stated that 8,800 people work in downtown Wilmington and of those, 2,500 are state, federal, and local government workers. She spoke on the importance of government to the downtown area saying that the continued loss of these employees will hurt the downtown economy and will disburse governments services. On behalf of the DARE Board of Directors and Executive Board, she urged the Board to consider other options before relocating offices, and she offered the assistance of DARE during the decision-making process. Chairman Davis recognized and welcomed John Bullock, a business owner in the downtown area, Councilman Jim Quinn, and Councilman Frank Conlon to the meeting. Councilman Jim Quinn, a member of the DARE Board for the past 15 years, expressed concern about the future of the downtown area if the County continues to move offices away from the downtown area. He said that the federal government is required by law to rent space in an urban downtown central business district and must prove that they cannot find space before renting elsewhere. As a practicing real estate broker, he has received these notices from the federal government and has been told that the state government has the same type of regulation. While the urban downtown areas may be relics of the past when people needed government offices to be centrally located, downtown areas generally have better built buildings. To keep the downtown central business district a viable part of the community, special efforts are needed to address some particular challenges such as dealing with historic buildings. Parking concerns have been addressed by proposed parking decks. It is important that governments maintain their presence in the downtown area. He opposed the City’s decision to move the police department from the downtown area and the County’s decision to move 100 employees to the suburban mall, because if the trend continues, it will be potentially the end of the downtown area. He spoke on the importance of a busy urban area to the tourist industry in the historic area and urged the Board to stop moving County offices from the downtown area. John Hinnant, President of the Downtown Wilmington Association and a member of DARE, spoke against the County moving offices from the downtown area. The Downtown Wilmington Association believes that the loss of the NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 454 nine-to-five office employees in the downtown area will cause a decrease in retail sales in New Hanover County. He reported that business has been slow since the County moved the 100 employees to the Marketplace Mall, and the loss of retail sales will lead to the closing of small businesses and loss of jobs. He requested the Board to keep the County offices in the downtown area. Louis Rogers, director of the Wilmington branch of Self Help Credit Union, informed the Board that Self Help is a community lender with $1 million assets providing loans for commercial development in the downtown area. After the renovation of the Efird Building at Front and Grace Streets, the lender will have a $2 million investment in the downtown area. Since the County has moved offices to Marketplace, two prospective tenants have stated that they are unsure if they need to be downtown and some small businesses are having financial trouble. He spoke on the importance of small businesses to tourism in the area and urged the Board to keep County offices in the downtown area. ADDITIONAL ITEMS Discussion of Child Daycare Subsidy Commissioner Pritchett spoke concerning the 300 families who have been told by DSS that their childcare subsidy is no longer available. The Partnership for Children Committee was notified by the State that more funding will be lost. The loss of the funding will mean that moderate- and low-income parents will go back on the welfare rolls in order to take proper care of their children. In anticipation of funding concerns, the Partnership for Children has set up Share the Care Program for individuals who may want to help subsidize childcare for these deserving children. She encouraged the public to support the Share the Care Program so these children will have proper day care and to prepare them for public schools. More information can be obtained from the Partnership for Children or by contacting Chris McNamee at DSS. County Manager O’Neal said that he has spoken with Assistant County Manager Pat Melvin regarding the State subsidy, and he reported that the County will continue to seek funding from the Department of Health and Human Services. The State is looking for unspent childcare money in other counties to revert to those in need. The County will have a deficit of $650,000, and another 100 to 400 children will be eliminated from the program. The daycare funding from the State is matched by the County and it enables many people to go to work and school. With the end of the funding, the trend of decreasing welfare recipients will be reversed and the County’s expenses for mandated welfare programs will increase. Discussion of Naming School for William D. Halyburton, Jr. Commissioner Caster reported that the coalition of veterans has requested the School Board to name a new school after William D. Halyburton, Jr., a Medal of Honor recipient from New Hanover County. Since a new school is 3 to 4 years away, other alternatives are being considered. They have discussed renaming a current school or naming the sports complex at Veterans Park after Mr. Halyburton. He suggested that the Parks Board work with the School Board to consider other options. Vice-Chairman Greer said the Commissioners recently addressed the issue when renaming Veterans Park Drive in honor of Mr. Halyburton. Chairman Davis reported that he talked with Mr. Bilzi about being consistent with the Park’s theme of honoring the County’s war heroes and suggested that Mr. Halyburton be honored in some way at Veterans Park. The School Board will consider that option. Discussion of Commission for WWII Commemoration Commissioner Caster reported that Wilbur Jones, representing WWII Heritage Commission, will be requesting the Commissioners to establish a committee to schedule a WWII commemoration event. Mr. Jones’s group will give a recommendation of how many members will be needed and the groups that should be represented on the committee. Discussion of Water Supply for Archmil Place Commissioner Caster requested an update on the water complaint at Archmil Place. County Manager O’Neal responded that the County has notified the appropriate City people. Vice-Chairman Greer requested City Council members Frank Conlon and Jim Quinn to followup on the request from the people at Archmil Place for the City to provide water to that neighborhood. CLOSED SESSION Chairman Davis announced that a Closed Session would be held pursuant to G.S. 143.318.11(a)(5) concerning property acquisition and G.S. 143.318.11(a)(3) concerning a contract matter. He requested a motion to convene to Closed Session. Motion : Commissioner Boseman MOVED, SECONDED by Commissioner Pritchett, to convene to Closed Session. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Davis convened to Closed Session at 8:00 p.m. Chairman Davis reconvened to Regular Session at 9:46 p.m. He reported that in Closed Session the Board instructed Staff to continue negotiations concerning the purchase of real property and the sale of real property and discussion was held with the attorney concerning a contract, but no action was taken. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 REGULAR MEETING, JANUARY 6, 2003PAGE 455 ADJOURNMENT There being no further business, Chairman Davis called for a motion to adjourn the meeting. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to adjourn the meeting. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Davis adjourned the meeting at 9:47 p.m. Respectfully submitted, Teresa P. Elmore Deputy Clerk to the Board