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2002-05-06 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 140 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, May 6, 2002, at 5:30 P.M. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Members 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 Clerk to the Board, Lucie F. Harrell. Chairman Davis called the meeting to order and welcomed all persons present. He requested persons in the audience to cut off their cell phones and avoid carrying on conversations that would be disruptive to the Commissioners or speakers making a presentations. Chairman Davis spoke on being saddened by the passing of a former County Commissioner, Nolan O’Neal and stated that he served on the Board of County Commissioners for eight years during which time he served as Chairman for three years. His love for New Hanover County was demonstrated through his efforts to protect the unique quality of life in our community, and as a result, our County is a better place because of his service. Chairman Davis requested everyone to keep the O’Neal family in their prayers and thoughts and stated that a letter had been written to his wife, Dr. Jean Debell-O’Neal and his family expressing our sympathy and respect for Nolan. INVOCATION AND PLEDGE OF ALLEGIANCE TO THE FLAG Reverend Bill Spencer of Wesley Memorial United Methodist Church gave the invocation. Former Mayor David Jones let the audience in the Pledge of Allegiance to the Flag. ANNOUNCEMENT OF ITEMS REMOVED OR WITHDRAWN FROM THE REGULAR AGENDA AND CONSENT AGENDA Chairman Davis announced that the following items have been removed from the Regular Agenda and will not be heard: •Regular Agenda Item 8, Naming of the Shaw-Speaks Facility was removed by staff. •Regular Agenda Item 11.2, Rezoning of 10.1 acres from R-15 Residential to R-10 Residential located on the north side of Gordon Road in the 6200 Block, has been withdrawn by the petitioner, Russell Simmons through a letter from Attorney Alton Lennon. •Regular Agenda Item 11.5, Zoning Text Amendment to amend Section 50.5 of the Permitted Use Table to allow Cemeteries by Special Use Permit in the A-I Airport Industrial Zoning District, has been removed by staff. •Regular Agenda Item 19 Consideration of an Amendment to Water and Sewer Connections and Plumbing Improvements Revolving Loan Program, has been removed by staff. 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. Commissioner Caster requested removal of Consent Agenda Item 7 for discussion. Hearing no further requests, Chairman Davis called for a motion to approve the Consent Agenda. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Caster, to remove Item 7 for discussion and approve the remaining 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 following meetings as presented by the Clerk to the Board: Regular MeetingMarch 25, 2002 Regular MeetingApril 15, 2002 Special MeetingFebruary 18, 2002 Approval of Annual Plan for Juvenile Crime Prevention Council for July 1, 2002 to June 30, 2003 The Commissioners approved the annual plan outlining a funding and program plan as prepared by the Juvenile Crime Prevention Council (JCPC) for the coming fiscal year. The JCPC has to submit a plan each year to area and state offices. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 141 Authorization to Apply for a U.S. Government Substance Abuse Mental Health Services Administration Grant (SAMHSA) to Enhance Services to the Juvenile Day Treatment Center The Commissioners authorized the filing of a grant application for a Substance Abuse Mental Health Services Administration grant to expand and enhance an array of services to the Juvenile Day Treatment Center to be provided by a collaborative effort involving the faith communities, WHAT, DREAMS, Coastal Horizons, UNC-Wilmington, DJJDP, and the Community Mediation Center. The services will include health education, psychological services and counseling, experiential education, mentoring, and community services. The grant is $500,000 per year for a 3-year period, and no County match is required. The County Manager was authorized to accept the grant if awarded. Authorization to File a Grant Application to the Environmental Protection Agency for Two Stormwater/Water Quality Projects in the Prince George Creek, Burnt Mill Creek and Smith Creek Watershed The Commissioners authorized the filing of a grant application to the Environmental Protection Agency for funds to construct two retention ponds as stormwater/water quality projects in the major watershed which includes Prince George Creek, Burnt Mill Creek and Smith Creek. The specific projects will come from a list developed jointly by the N. C. Wetlands Restoration Program and the Local Watershed Stakeholders Team. The grant does not require matching funds from New Hanover County and includes money to reimburse the County for staff time. The North Carolina Wetland Restoration Program staff will provide in-kind services to satisfy the match requirement. Authorization for Department of Aging to Apply for Program of National Significance Grant from Corporation for National Service to Expand RSVP Funding Level The Commissioners authorized the filing of a grant application to the Corporation for National Service in the amount of $50,000, which will allow the local RSVP Program to permanently expand its federal funding level under the new Homeland Security initiatives. The County’s proposal will include a project involving RSVP volunteers in "homeland security" as defined by the Corporation along with disaster preparedness and recovery. No County funds are required. Adoption of Resolution Relating to the Sale of Surplus Property Jointly Owned by the City of Wilmington and New Hanover County The Commissioners adopted a resolution approving the sale of surplus property owned by the City and County located at 917 North Fifth Street, Parcel # 3118-20-82-8484-000. The tax value is $3,105, and Mr. Morris Massey of 141 Blount Drive has offered $4,250. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.1. Approval of Budget Amendment 02-0172-Juvenile Day Reporting Center The Commissioners approved the following Budget Amendment: AdjustmentDebitCredit Juvenile Day Reporting Center-Gov. Crime Commission:$28,114 Salaries$25,960 FICA$ 4,500 Retirement$18,480 Medical Insurance$ 8,000 Supplies$34,151 Computer Equipment$ 1,200 Capital Outlay$29,475 Juvenile Day Reporting Center-NHC Schools: Salaries$32,250 FICA$ 3,750 Explanation: The budget amendment is to decrease the budget to reflect a grant adjustment approved by the Governor's Crime Commission (GCC). Staff anticipated not spending all of the original grant awarded by the GCC and submitted a revision to reflect this adjustment. Because the match on the grant is provided by the NHC Schools, the County will have to decrease the JDRC/NHC to NHC Schools budgeted expenditures. Approval of Budget Amendment #02-0183-Public Health/Breast and Cervical Cancer Control Program The Commissioners approved the following Budget Amendment: AdjustmentDebitCredit State Grant$8,000 Contracted Services$8,000 Explanation: To budget an additional $8,000 received from the State Breast and Cervical Cancer Control Program for use in providing services to women who are eligible. These are one-time funds and must be spent by June 30, 2002. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 142 APPROVAL OF CONSENT AGENDA ITEM #7, A BUY AND SELL AGREEMENT (CONTRACT #02-0327) TO PURCHASE THE PETERSON FAMILY PROPERTY LOCATED OFF DUNBAR ROAD IN THE MIDDLE SOUND AREA Commissioner Caster advised that acquisition of the 17.35 acres of the Peterson family property off Dunbar Road in the Middle Sound area would protect the water quality in the Pages Creek watershed. This parcel is one of only a few pieces of property remaining in New Hanover County with water frontage that can be saved as green space and accessed by the public. The acquisition will be paid by a N. C. Clean Water Management Trust Fund Grant that was awarded to the County for the purchase of Airlie Gardens. The land cannot be used for a park, the nature trails will remain in place, minimal parking will be provided, and no development will occur on the water front property. In concluding the presentation, Commissioner Caster requested the Board to approve the Buy and Sell Agreement, which will also have to be approved by the Clean Water Management Trust Board. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Pritchett, to approve the Buy and Sell Agreement in the amount of $1,560,000 to purchase 17.35 acres of property off Dunbar Road from the Peterson family with funding from the Clean Water Management Trust Fund Grant and authorize the County Manager to execute the agreement. Discussion was held on the use of the property. Chairman Davis expressed concern for the County maintaining the nature trails and allowing them to be used as bridle trails when the purpose of the acquisition is to protect the water quality. Vice-Chairman Greer agreed with the comments made by Chairman Davis and stated that he could not support the acquisition of the property at a cost of $1,560,000 for the protection of water quality if the nature trail system is used for bridle trails. Planning Director Hayes stated that he felt once the Buy and Sell Agreement is reviewed by the N. C. Clean Water Management Trust Fund Board, restrictions will be applied to prohibit any use that would degrade the water quality in Pages Creek. Chairman Davis called for a vote on the motion to approve the Buy and Sell Agreement. Upon vote, the MOTION CARRIED 3 to 2. Chairman Davis and Vice-Chairman Greer voted in opposition. A copy of the Buy and Sell Agreement is on file in the Legal Department. PRESENTATION BY BOMB THREAT TASK FORCE AND ADOPTION OF RESOLUTION CONDEMNING FALSE BOMB THREATS Commissioner Pritchett reported that following the September 11terrorist attacks, many false bomb threats were called into the schools and court facilities, which created disruption of normal activities. Former Mayor David Jones created a Task Force, which met for several months, to address this problem by using a proactive approach in trying to prevent future false bomb threats. She advised that a power point presentation had been prepared to show the methodology used by the Task Force, but due to the length of the agenda, the presentation would not be shown. If persons are interested in seeing the presentation, it will be shown at the City Council meeting on May 7, 2002. In closing, Commissioner Pritchett expressed appreciation to District Attorney John Carriker, Chairman of the Task Force, Mayor David Jones, Reggie Mathis, and John Ranalli for the effort and time given to serve on the Task Force. She requested Public Information Officer Mark Boyer to show two PSAs produced by New Hanover County school students that are being sponsored by local businesses and will be broadcast on local television stations in August before school starts and around September 11, 2002. The first PSA is addressed to the students and the second to parents. These are powerful messages to inform the community and young people that false bomb threats or similar hoaxes will be a felony punishable by fines, suspension of driving privileges and/or prison. The Star News will also be sponsoring some printed ads. Chairman Davis called for a motion to adopt the resolution. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Caster, to adopt a resolution condemning false bomb threats as a financial and work disruption to New Hanover County schools and courts and to encourage the general public to assist in the apprehension of those responsible for such threats. Upon vote, the MOTION CARRIED UNANIMOUSLY. Commissioner Pritchett requested Reggie Mathis to step forward to receive the resolution. On behalf of the Board, Chairman Davis presented the resolution to Mr. Mathis and expressed appreciation to him and other members of the Task Force for the effort given to serve on this worthwhile committee. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.2. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 143 ADOPTION OF PROCLAMATION DECLARING MAY, 2002 AS “NATIONAL COMMUNITY ACTION MONTH” IN NEW HANOVER COUNTY Chairman Davis called for a motion to adopt the proclamation. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Caster, to adopt a proclamation declaring May, 2002 as “National Community Action Month” in New Hanover County in recognition of the hard work and diligence of staff, administration and volunteers of New Hanover County Community Action, Inc. Upon vote, the MOTION CARRIED UNANIMOUSLY. On behalf of the Board, Chairman Davis presented the proclamation to Ms. Brenda Thomas, Family Services Manager of New Hanover County Community Action, Inc. and expressed appreciation to her for the services provided to promote family self-sufficiency in New Hanover County. Ms. Thomas expressed appreciation to the Board for this recognition on behalf of the children and families served by Community Action, Inc. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.3. ADOPTION OF PROCLAMATION DECLARING MAY, 2002 AS “FOSTER CARE MONTH” IN NEW HANOVER COUNTY Chairman Davis called for a motion to adopt the proclamation. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to adopt a resolution declaring May 2002 as “Foster Care Month” in New Hanover County to thank all foster mothers and foster fathers for their commitment to these children. Upon vote, the MOTION CARRIED UNANIMOUSLY. On behalf of the Board, Chairman Davis presented the proclamation to Ms. Wanda Neidig, Assistant Director of Social Services Workers, and expressed appreciation to the foster mothers and fathers in New Hanover County who provide a safe home to a child in need. Ms. Wanda Neidig expressed appreciation to the Board for the proclamation and requested the foster parents to stand and be recognized. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.4. ADOPTION OF PROCLAMATION DECLARING THE WEEK OF MAY 5-11, 2002 AS “NATIONAL SAFE KIDS WEEK” IN NEW HANOVER COUNTY Assistant County Manager Patricia Melvin reported that the New Hanover County Board of Health, New Hanover SAFE KIDS Coalition, and National SAFE KIDS Campaign endorse and support injury prevention efforts to decrease the unnecessary injuries, disabilities, and deaths from bicycles and other wheeled recreational vehicles. New Hanover County has a 50% higher number of bicycle crashes at intersections and 40% higher number of crashes than other counties due to the negligence of motorists. The Board of Health is requesting the Board of County Commissioners to proclaim May 5-11, 2002, as National Safe Kids Week in New Hanover County to call attention to the need to reduce the number of bicycle and other wheeled sports related injuries in the community. Chairman Davis called for a vote to adopt the proclamation. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Caster, to adopt a proclamation declaring “National Safe Kids Week” the week of May 5-11, 2002 as in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. On behalf of the Board, Chairman Davis presented the proclamation to Vice-Chairman Greer, the Commissioner representative on the Board of Health, and expressed appreciation to the members of the Board of Health for their efforts to reduce bicycle injuries in New Hanover County. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.5 ADOPTION OF RESOLUTION RECOGNIZING NEW HANOVER COUNTY AS A PARTICIPANT IN THE PILOT PROGRAM FOR REHABILITATING EXISTING BUILDINGS Inspections Director, Jay Graham, reported that last year, Ms. Susi Hamilton, Director of DARE, contacted the County Manager to inquire about the County’s involvement with the new rehabilitation code that was approved as a pilot study by the North Carolina General Assembly on August 17, 2001. The County Manager instructed the Inspections Department to see if the County could be a part of the pilot program. This effort has placed the County in the position of being one of twelve jurisdictions that are qualified by the State to administer the new code. In addition, New Hanover County is an integral part of the original four jurisdictions (Mecklenburg County, New Hanover County, Asheville and Raleigh) that have worked directly with Mecklenburg County, as the Lead Jurisdiction, and New Jersey authorities to bring the new code to North Carolina. Because of this involvement, Staff recommends adoption of a resolution to enable New NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 144 Hanover County to be a participant in the pilot program for rehabilitating existing buildings within New Hanover County’s jurisdiction. After hearing no comments from the Board, Chairman Davis called for a motion to adopt the resolution. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Boseman, to adopt a resolution to enable New Hanover County to be a participant in the pilot program for rehabilitating existing buildings within New Hanover County's jurisdiction. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.6. ADOPTION OF PROCLAMATION DESIGNATING NEW HANOVER COUNTY AS A BICYCLE FRIENDLY COMMUNITY AND MAY AS BICYCLE AWARENESS MONTH Mr. Chris O’Keefe advised that in1991, the Board of County Commissioners recognized the New Hanover County Bicycle Advisory Committee and recommended membership designations with representatives from the municipalities, law enforcement, education, planning, transportation, commerce and bicycle user groups. Since that time, the Committee has been involved with education and safety programs as well as presenting ideas, plans, and projects that promote bicycle use to local private and public groups in New Hanover County. In light of these activities, the Committee would like for the Board of Commissioners to recognize the County as a Bicycle Friendly community and designate the month of May as Bicycle Awareness Month. Bicycle Awareness Month will be commemorated with a series of bicycle related activities designed to promote safe bicycle use in New Hanover County. Chairman Davis called for a vote to adopt the proclamation. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Caster, to adopt a resolution proclaiming Bicycle Awareness Month May, 2002 as and designate New Hanover County as a Bicycle Friendly Community. Upon vote the MOTION CARRIED UNANIMOUSLY. On behalf of the Board, Chairman Davis presented the proclamation to Mr. Chris O’Keefe and expressed appreciation to the Committee for the progress made in promoting safe bicycling in New Hanover County. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.7. ADOPTION OF A RESOLUTION APPROVING SALE OF PUBLIC IMPROVEMENT BONDS, SERIES 2002 Chairman Davis advised that New Hanover County voters approved a referendum on November 4, 1997, for public improvement bonds of $125 million for public schools and $38.3 million for Cape Fear Community College. The County has sold $111 million of school bonds and $24 million of Community College bonds. The resolution before the Board of County Commissioners is to authorize the sale of the remaining $14 million of school bonds and $14.3 million of Community College bonds. Chairman Davis called for a motion to adopt the resolution. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Pritchett, to adopt a resolution authorizing the sale of Public Improvement Bonds, Series 2002 in the amount of $14 million for schools and $14.3 million for Cape Fear Community College. Upon vote, the MOTION CARRIED UNANIMOUSLY. County Manager O’Neal proudly announced that New Hanover County had maintained its AA bond rating. Chairman Davis congratulated the Finance Director and employees of the Finance Department for this outstanding accomplishment. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.8. APPROVAL TO RESCHEDULE COUNTY WIDE PROPERTY TAX REVALUATION FROM 2004 TO 2007 Tax Administrator, Robert C. Glasgow, reported that New Hanover County has an opportunity to reschedule the current 2004 revaluation to 2007. The reason for this request is because there has not been a drastic change in property tax values from the 1999 revaluation. As the result of a 6.98% change over the past three years, it would not be cost effective to perform the revaluation in 2004. To perform a revaluation in-house costs approximately $250,000. If the revaluation is performed by a firm, the cost is approximately $750,000. With the need to replace the computer software package in the Tax Department at a cost of $500,000, the evaluation can be delayed until 2007 to defer some of the cost and allow time for the software be in placed before the 2007 evaluation is conducted. Chairman Davis asked if the new computer software should be in place two years before performing the 2007 evaluation. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 145 Tax Administrator Glasgow responded that at least two years are needed to implement the new system. Discussion was held on whether delaying the evaluation would result in a large increase to property values. Tax Administrator Glasgow commented on the difficulty in knowing exactly how property values will increase after 2004. In the past three years, there has been less than a 7% change in the market value from January 1, 1999 to January 1, 2001. Waterfront and river front properties will probably continue to increase in value, but other property values have not escalated. During the 90's property values were increasing by 6%, 7%, and 8% every year. Currently, property values are increasing only 2 to 2.5% per year, but no one knows how these values will change in the next five years. Chairman Davis asked if any member of the Board would like to comment. Commissioner Pritchett asked if the proposed resolution will obligate the County beyond 2007. Tax Administrator Glasgow responded that the extension will not obligate the County beyond 2007. If the Tax Department finds that property values are rapidly increasing, a request will be made to perform a 4-year revaluation after 2007. Hearing no further comments, Chairman Davis called for a motion. Motion: Commissioner Pritchett MOVED, SECONDED by Vice-Chairman Greer, to adopt a resolution to conduct the next revaluation of real property in New Hanover County on January 1, 2007. Upon vote the MOTION CARRIED UNANIMOUSLY. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.9. MEETING CONVENED TO HOLD A MEETING OF THE BOARD OF EQUALIZATION AND REVIEW Chairman Davis convened from Regular Session at 6:15 P.M. to hold a meeting of the Board of Equalization and Review. Chairman Davis reconvened to Regular Session at 6:21 P.M. ADOPTION OF RESOLUTION TO SUPPORT REROUTING THE DRAINAGE SYSTEM PROPOSED FOR THE U.S. 17 BY-PASS TO PREVENT A NEGATIVE IMPACT ON THE FUTCH/FOY CREEK WATERSHED IN NORTHEAST NEW HANOVER COUNTY Commissioner Caster reported that the U.S. 17 By-Pass drainage system was originally brought before the Board at its meeting on November 13, 2000, at the request of the Tidal Creeks Advisory Board. The Advisory Board adopted a resolution recommending that the Board of Commissioners take all necessary actions to require that the proposed drainage system be redesigned to prevent degradation of the water quality in Futch/Foy Creek. At its meeting held on March 15, 2002, the Tidal Creeks Advisory Board discussed and heard comments from the public regarding the drainage system that was redesigned for the by-pass. The Advisory Board unanimously adopted a new resolution recommending that the Board of County Commissioners and the North Carolina Board of Transportation take action to ensure that the proposed stormwater discharge from the by-pass is not directed toward the tidal creek watershed and that both boards work together to develop an environmentally sound treatment system west of Highway 17. Vice-Chairman Greer asked if any consideration had been given to using some of the N. C. Clean Water Management Trust Fund Grant money to redirect the stormwater discharge. Commissioner Caster responded that he felt the N. C. Department of Transportation would and should be responsible to pay for redirecting the stormwater discharge. After hearing no further comments, Chairman Davis called for a motion. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to adopt the resolution as recommended by the Tidal Creeks Advisory Board. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXVII, Page 19.10. BREAK Chairman Davis called a break from 6:25 P.M. until 6:35 P.M. PUBLIC HEARING TO CONSIDER REQUEST FROM SCOTT STEWART FOR INLAND HARBOUR LLC, TO REZONE 23.58 ACRES OF PROPERTY IN THE 3100 BLOCK OF MIDDLE SOUND LOOP ROAD FROM R-20 RESIDENTIAL TO CD(R-15) CONDITIONAL USE RESIDENTIAL AND CD(B-1) CONDITIONAL USE NEIGHBORHOOD BUSINESS (Z-740, 04/02) Chairman Davis advised that this is a public hearing for the Board of County Commissioners to hear a request by Inland Harbour Properties, LLC to rezone 23.58 acres of property located in the 3100 block of Middle Sound Loop Road at Demarest Village from R-20 Residential to CD(R-15) Conditional Use and CD(B-1) Conditional Use Neighborhood Business. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 146 The Board will first decide whether to rezone the property. Should the Board vote to rezone the property, the Board must then vote on whether to approve a Special Use Permit. The permit process is quasi-judicial; therefore, anyone wishing to speak must be sworn in by the Clerk to the Board. The side supporting the rezoning petition and the side in opposition will each be given a total of fifteen (15) minutes for direct presentation with five (5) minutes each for rebuttal or cross examination. The speakers are being requested not to be repetitive. Chairman Davis advised that Attorney Andrew Rogers will be representing the petitioner and Attorney Gary Shipman will be representing the respondent. Staff will make a formal presentation followed by presentations from Mr. Rogers and Mr. Shipman. The Board of County Commissioners will then discuss the issue and render a decision. Chairman Davis requested all persons wishing to speak on the Inland Harbour Properties, LLC case to step forward to be sworn in by the Clerk to the Board. The following persons were sworn-in by the Clerk to the Board. Dexter Hayes Scott D. Stewart, RLA Bowen Houff Andrew Rogers Walter Kulash Frank Voli Julie Macie Mark Saulnier Lawrence Cahoon Don Parmenter Buck O’Shields John D. Lennon Gary Shipman Gloria M. Miller Jan F. Van Hoesen Wayne L. Nutt Lawrence H. Greer Robert Parr Chairman Davis opened the Public Hearing and requested the Planning Director Dexter Hayes to make the formal presentation. Planning Director Hayes presented a slide of the Land Classification map showing the subject property with the lighter green area representing the Resource Protection Classification and the darker green area representing the flood plain. A more detailed map was presented showing the existing zoning and land use in the vicinity of the property and the cross-hatched area representing the property being petitioned for the commercial and conditional use residential. Sandy Brook Subdivision is adjacent to the property developed under R-15 zoning guidelines, and Middle Point and South Point Subdivisions are adjacent and east of the subject property developed under R-20 zoning guidelines. This zoning allowed a variety of lot sizes with a maximum density of 1.9 units per acre. Providence, Demarest Landing, and Timber Creek located across Middle Sound Loop Road were developed under R-20S zoning guidelines, which limits development to detached dwellings with a minimum lot size of 20,000 square feet. The petitioner is requesting a zoning change from R-20 Residential to C D(R-15) Conditional Use R-15 Residential and CD(B-1) Conditional Use Neighborhood Business. The proposed conditional use site plan is consistent with the traditional neighborhood style of development that has become a popular trend. If the subject property is developed under the current R-20 zoning, 45 residential units are permitted. Under the proposed R-15 zoning, the property can accommodate 59 total units, which is an increase of 14 dwelling units. The additional units will be dispersed throughout the site to provide a mixture of home sites incorporating town homes with small courtyards, row homes with small yards and single-family homes with larger yards. Although the proposed zoning allows additional density, the petitioner has maintained 46% of the site as open space with a series of parks. The open space includes 2.5 acres of undisturbed natural areas and three parks, which incorporating active and passive recreation including a ballfield. All of the open space is linked through a network of sidewalks totaling almost 1.24 miles. In conjunction with the residential development, the petitioner is requesting a Conditional Use Neighborhood Business rezoning and Special Use Permit to create Demarest Village Square. This 2-acre portion of the Demarest Village Master Plan would accommodate small neighborhood scale services and shops built around plazas and courtyards. The site plan shows a membership swim club and six two-story buildings with a dormered third story. An architectural rendering was presented showing how the property will look. A slide of the vacant property was presented in a northeasterly direction looking toward the Middle Point development across the street and the entrance way into the subdivision. Slides were shown of the brick fencing toward Middle Sound and a view of the Sandy Brook Development. Existing dwellings were shown as well as ponds to accommodate drainage from the development. At the Planning Board meeting held on April 11, 2002, the petitioner reviewed the history of the project and presented his conditional use plan referencing policies in the New Hanover County Comprehensive Land Use Plan that NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 147 support this type of development. The petitioner also reviewed conditions recommended by Staff and presented some methods to accomplish the conditions. Mr. Walter Kulash, the petitioner’s traffic engineer, presented the traffic impact analysis and gave a brief explanation of how the project would recapture trips within the Middle Sound area. Several people spoke in opposition to the request. After discussion, the Planning Board asked Dr. Lawrence Cahoon, a Professor of Biological Sciences at UNC-Wilmington to comment on the stormwater management system. Dr. Cahoon made a brief presentation in support of the project and endorsed the quality of the storm water system proposed for Demarest Village. After further discussion, the Planning Board voted 4 to 2 to recommend approval of the conditional use rezoning with the following conditions: 1. All 18 conditions proposed by the applicant shall apply to the conditional use zoning. 2. Uses within the development shall be restricted to the attached list of uses with minor changes as noted, and the specific buildings designed in the application for these uses. 3. The additional 14 dwelling units shall not be built until after the completion of Village Square. 4. The developer shall be required to provide sidewalk improvements along Middle Sound Loop Road and make intersection and circulation improvements at Ogden Elementary School. The Planning Board recommends using the following criteria to accomplish this condition. (A) Upon approval of the application as presented, the applicant shall donate his Landscape Architectural services to assist Mr. Bill Hance of the New Hanover County School System to execute the required site design, engineering and construction documents for the Ogden School Campus at no cost. The applicant at no cost to the County or New Hanover County School System shall engage civil engineering services of a mutually agreed upon civil engineering company to assist in the execution of these documents to the satisfaction of the New Hanover County School System. (B) In addition to the preparation of the Middle Sound Loop Road Enhancement grant for a sidewalk and sidewalk improvements proposed in the application, the applicant shall construct a sidewalk on Middle Sound Loop Road from Demarest Village Square to the entrances of Queens Point and Providence neighborhoods. This minimum improvement shall be installed prior to receiving a Certificate of Occupancy for the Demarest Village Swim Club or the first Phase of the Village Square. (C) The applicant shall pay an improvement fee to the New Hanover County School System based upon gross leasable area within the Village Square at a rate of $1,221.50 per 1,000 square feet of gross leasable area for traffic circulation improvements at the Ogden Elementary School. Commissioner Boseman requested a figure on the cost of circulation improvements at the Ogden Elementary School. Planning Director Hayes responded that the cost would be approximately $30,000 based upon the same ratio used for other transportation improvements required for commercial development at the Monkey Junction intersection. Planning Director Hayes continued by saying that the proposed Village Square will provide an amenity for all residents within Middle Sound by providing goods and services that are not otherwise available without leaving the community and entering the commercial corridors along Market Street and Military Cut-Off Road. The petitioner’s traffic impact analysis suggests that the proposed Village Square will reduce the vehicle trips entering and leaving Middle Sound by approximately 500 vehicles trips per day and remove 1,680 vehicle trips a day from the Market Street and Military Cut-Off Road corridor by internally recapturing vehicular circulation within Middle Sound. In addition to alleviating some of the traffic in Middle Sound, the Demarest Village Park open space and pedestrian facilities will be open to patrons of Village Square providing another amenity for the residents. In concluding the presentation, Planning Director Hayes provided the history of the Middle Sound area from 1970 to the current time, and stated that the neo-traditional neighborhood composed of a mixture of housing coupled with some light retail may prove to be a positive example for other traditional communities in the County. This type of development lends itself to less traffic congestion within the community and encourages more human interaction. Several sections and policies in the Comprehensive Land Use Plan recommend this type of development as a preferred style of land use. Based on the consistency with the Comprehensive Land Use Plan, the additional pedestrian and open space connections provided for the Middle Sound Community, and the conditions proposed by the petitioner, Staff recommends approval. Planning Director Hayes entered the following findings of fact 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 based upon the following findings: NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 148 A. The subject property is located within the Ogden Volunteer Fire Department District. B. The site is served by a City water system and County Sewer. C. Storm water management has been provided including routing for the 25-year storm event. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A.A site plan which meets the requirements of the zoning ordinance has been submitted. B.Additional covenants and restrictions for development apply to the Special Use Permit. C.Adequate parking is available on the property. 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 based upon the following findings: A. The proposed plan incorporates 3 parks and open space totaling over 10 acres. The Village Park, which is approximately 1.3 acres, is for use by Demarest Village residents and patrons of the Village Square. B.The plan also adds desirable convenient neighborhood services within the community which may add value by recapturing vehicle trips and alleviating some traffic concerns. 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 based upon the following findings: A.The proposed development style is consistent with other upscale neighborhoods within Middle Sound. B.The site is classified as Resource Protection by the New Hanover County Comprehensive Plan and is within urban growth boundaries. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. Residential density of 2.5 units per acre is permitted. Chairman Davis asked if any member of the Board would like to comment on the presentation made by the Planning Director. Commissioner Boseman asked if a reduction in vehicle trips on Market Street would increase the number of trips on Middle Sound Loop Road. Planning Director Hayes responded that more traffic could occur until interior connections are provided. Commissioner Pritchett asked how many existing residences are located on the Middle Sound Loop Road. Planning Director Hayes responded that based upon the 2000 Census data, there are 1,952 residences. Chairman Davis commented on the fact that a similar petition was presented to the Board a year ago with the request being denied, and he asked if any major changes have been made in the petition being considered. Planning Director Hayes responded that the following changes have been made: (1) additional conditions that require improvements to the intersection at Ogden Elementary School and sidewalk improvements; and (2) participation by the petitioner in terms of monetary funds and services to ensure the improvements will occur. Commissioner Boseman asked if approval of this request would open the door for more commercial development on Middle Sound Loop Road. Planning Director Hayes responded that he did not feel the proposed rezoning would open the door to additional commercial development on Middle Sound Loop Road. The developer lives in the subdivision and is very committed to the success of the project. This type of mixed use development will not come along for another decade. With the lack of large parcels on Middle Sound Loop Road, it would not be possible to design another project of this type. Commissioner Boseman referenced the petitioner’s contribution to the road improvements and asked who will fund the remaining cost of the project. Planning Director Hayes explained that local NCDOT discretionary funds will be used for improvements to the intersection at Ogden Elementary School; however, the School System has plans to improve the parking and circulation of traffic. These projects are entwined and once the Board of Education secures funding for improvements to the parking and traffic circulation at the elementary school, the NCDOT will move forward with its portion of the project for improvements to the intersection. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 149 Chairman Davis recognized Mr. Andrew Rogers and Mr. Bowen Houff, of the Forsyth County Bar and asked the attorneys if they would like to withdraw or modify the application at this time. Attorney Rogers responded that the petitioner does not want to withdraw the application and stated that he was aware that he would have another opportunity to exercise this option at a later time during the hearing. Chairman Davis asked if both attorneys understand that if the Board proceeds with the hearing and the request is denied, it will be 12 months before another petition can be submitted. Attorney Rogers responded that all parties are aware of this fact. Mr. Scott D. Stewart, the petitioner and resident of Middle Sound since 1994, advised that he lived across the street from the proposed project and that he was a Certified Landscape Architect in the State of North Carolina and the developer of Demarest Village. He advised that his qualifications concerning this testimony had been submitted to the Clerk to the Board. Mr. Stewart respectfully acknowledged the findings of fact as presented by the Planning Staff and findings of fact presented in the application. He requested the Board to accept the findings of fact along with the testimony. Mr. Stewart advised that the application was not about rezoning all of Middle Sound for higher density and commercial use as many people have been led to believe. The application is about rezoning a very small tract of land, 23.58 acres, to conditional use which is less than 1% of the land in the area known as Middle Sound. The New Hanover County Zoning Ordinance specifies conditional use as follows: Can create a more orderly transition benefitting all affected parties in a community at-large. It is not intended as a routine substitute for the general rezoning procedure or for frequent use. Mr. Stewart spoke on the proceedings at the April 2001 meeting of the Board of County Commissioners where the request was denied and stated that the Commissioners did not receive the correct story. At this meeting it was alleged through testimony and submitted correspondence that there would be negative impacts on the environment. Dr. Larry Cahoon, a Professor at UNCW had written a letter opposing the rezoning in April 2, 2001, but is present tonight to speak in favor of the application. The storm water permit was modified to gain approval by the Division of Water Quality for the Village Square and the additional 14 residential units. Approval of the permit modifications was received on February 28, 2002. Allegations were made at the last meeting that the storm water permit was invalid and under compliance review. The storm water permit is valid and has been modified and approved for Village Square and additional units. With reference to land use and density, the application submitted is in strict compliance with Section 2, Executive Summary of the Comprehensive Land Use Plan, Residential Neighborhood Development, in linking pedestrian friendly businesses in residential developments which supports the requested density increase to 2.5 units per acre. At the last meeting, allegations were made stating that Middle Sound was not protected and that the proposed conditional use zoning application was inconsistent with the Comprehensive Land Use Plan due to the Future Land Use Scenario Technical Report. This presentation was misleading and incorrect. The Future Land Use Scenario was never adopted and has no legal basis as stated by the City and County Planning Directors. This was further reaffirmed during the Planning Board meeting held on April 11, 2002, by Planning Board Member Frank Smith who also worked on the Land Use Comprehensive Plan. Historically, all of Middle Sound has been zoned R-15 Residential. Currently, 36.7% is R-15 Residential zoning and approval of this application would change this percentage to 37.2%, which represents a 1.7% increase. Middle Sound is not being rezoned and the request is for conditional use. With reference to adequate infrastructure and public safety, there are provisions in the application for water, sewer, storm water detention, and utilities which are permitted, constructed, in place, and approved at Demarest Village. All roads are constructed. The average road fronting Demarest Village is 40 feet wide to accommodate future left hand turning movements into the Village Square. Numerous meetings have been held with the N. C. Department of Transportation concerning Middle Sound Loop Road. On May 11, 2001, Mr. Roger Hawkins provided the Accident Report on Middle Sound Loop Road from 1998 to 2002. A meeting was held today, and the report has been updated. Mr. Walter Kulash, a well known Traffic Engineer, will make a presentation. The traffic condition has existed for decades at the intersection at Ogden Elementary School. This intersection operates at a safe level of service except for school drop-off hours, school pick-up hours, or for large school events. There is a need to improve on-site parking and circulation at the school. Mr. Stewart stated that he had personally donated hundreds of hours of professional expertise and time to resolve the traffic condition at the Middle Sound Intersection. Approximately $27,000 has been spent on contract documents and $43,263 in commercial assessments will be paid as the Village Square buildings receive a certificate of occupancy. These assessment fees will be contributed toward the school site improvements as suggested by the Planning Staff . In compliance to public safety, the application will provide 1,600 linear feet of off-site sidewalk improvements, which will be the first of its kind in Middle Sound. This will allow an alternative for residents to travel from neighborhood to neighborhood and to access services being offered at Village Square. The sidewalks will be constructed prior to receipt of a certificate of occupancy for the proposed swim club. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 150 With regard to commercial activity in Middle Sound, there are dozens of existing commercial vehicles, traffic and businesses. Commercial vehicles serving the Middle Sound area include garbage trucks, express mail trucks, water trucks, emergency trucks, propane trucks, furniture trucks, beverage trucks, County sewer maintenance trucks, horse trailers, boat trailers, moving trucks, school buses, CP&L trucks, BellSouth trucks, City water maintenance trucks, and food delivery trucks. Pictures were shown of trucks going up and down Middle Sound Road during peak traffic hours. Historically, there have been several commercial business establishments that have come and gone with some businesses operating without permission. There are commercial businesses in the Middle Sound area. Approximately 1.7% of Middle Sound is B-2 (55 acres) located on Market Street, and the proposed application will provide 2 acres of conditional use B-1 in Middle Sound, representing a .01% increase or a .07% change in the overall zoning in Middle Sound. Information was received on May 1, 2002 from the Tax Administrator Robert C. Glasgow and Larry P. Bolick indicating that the application will generate approximately $49,401.45 in tax dollars to the County. If the land remains in its existing state, it will only generate $7,415.00, which is a difference of $41,896.45 that will be a positive cash flow to New Hanover County. The additional 14 units will be built in sequence with the seven components of Village Square, since there will be six buildings and the swim club. Two residential units will be constructed upon the completion of each of the seven components. The units will assist funding of off-site improvement commitments and provide a subsidy for Village Square businesses and improvements. In concluding the presentation, Mr. Stewart requested Dr. Lawrence Cahoon to make a presentation. Dr. Cahoon, a Professor of Biological Science at UNCW, reported that the environmental impact of development is a major concern in New Hanover County. The issue is not whether development will occur, but what kind of development will occur. Environmentally responsible development practices are a nationwide concern, and information is available on this subject. The American Planning Association, Center for Watershed Protection, Wilmington-New Hanover County Land Use Plan, and Wilmington Watershed Protection Round Table all endorse mixed zoning as a method for reducing environmental impacts compared to conventional sprawl zoning. Mixed use development practices reduce total impervious surface regionally thereby reducing infrastructure and traffic. These practices preserve open green space, provide space for enhanced storm water management practices, and reduce the area of lawns and other heavily fertilized land use types. Mixed use zoning rules include significantly stricter storm water management regulations. Dr. Cahoon stated that Demarest Village meets and exceeds current storm water management requirements and meets more stringent mixed use requirements. Runoff from the proposed commercial area in Demarest Village will be treated before being discharged with a storm water pond sized for a 25-year storm which is much more effective than the typical 10-year pond used in other areas of the County. The proposed R-15 area will have the same 25% impervious surface as the current limit in R-20 areas, which means that no extra impervious surface will be created. Demarest Village already incorporates other storm water management features that meet or exceed current requirements which include streets that are narrow and permit parallel parking with access roads that are minimally paved, curbs and gutters that are minimized, flow-through vegetated or covered swales that are maximized, retention of natural vegetation, planting of new trees, vegetated boundary around the storm water pond, drainage ditches with minimal direct inflow and maximized pretreatment by filtration through swales, and the storm water receives treatment before discharge. In closing, Dr. Cahoon noted that a simple comparison tells the story. There is an adjacent R-20 sprawl type development creating sedimentation downstream. Demarest Village will not create sedimentation and this type of storm water management should be supported for all future development. Mr. Walter Kulash, Traffic Engineer of Glatting Jackson Kercher Aglin Lopez Rinehart, Inc., presented a report on the type of development in Demarest Village being fundamentally different from normal new development because it is predicated on bringing origin and destination as close as possible to eliminate the need for additional vehicular trips. The Village Square will provide residents with community services thus eliminating vehicle trips to Market Street thereby reducing trips in the entire area. In closing, Mr. Kulash commented on the NCDOT Traffic Accident Analysis and stated that based on 100 million vehicle miles, the Middle Sound Loop Road is operating at approximately one-tenth of the County in general. The injury crash rate shows that the Loop Road is operating at approximately one-fifteenth the accident rate because of the low speed environment and low traffic volume on the road. The Village Square project will reduce trips and not increase traffic on Middle Sound Loop Road. Mr. Stewart noted that Mr. John Lennon, a partner of Prudential Real Estate in Wilmington, N. C., was present and would speak. Chairman Davis noted that the time allotted had been exceeded and suggested calling on Mr. Lennon if his information is needed during the rebuttal period. Chairman Davis asked if any member of the Board would like for Mr. Stewart to answer any questions. Vice-Chairman Greer referenced the three parks mentioned and asked Mr. Stewart where the parks would be located. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 151 Mr. Stewart pointed out the location of Village Square Park, Village Green Park and Hollow Park on the plan. The parks are approximately 7 acres in size with buffers and open space around the development. The Village Square areas, plazas and green space are considered open space because theses area are for the enjoyment of Demarest Village residents. There is an 80-foot right-of-way for the street corridor and sidewalk corridor with an 18-foot wide pavement and 4-foot sidewalk with the balance landscaped as a green connection from Village Square Park to Village Green Park. There is another corridor connection from the Village Green Park to the Hollow Park. Chairman Davis noted that prior to the meeting, the members of the Board received a notebook and asked if this should be made part of the record. Mr. Stewart responded that the notebook and exhibits should be made part of the record. Chairman Davis requested the Clerk to the Board to make the notebook and exhibits part of the record. Chairman Davis asked if any member of the Board would like for Dr. Cahoon to answer any questions. Hearing no questions, Chairman Davis asked if any member of the Board would like for Mr. Kulash to answer any questions. Chairman Davis asked Mr. Lennon if felt the project would enhance the values of surrounding properties. Mr. Lennon stated that in his opinion the project would enhance the value of surrounding properties. Chairman Davis requested Attorney Gary Shipman, representing opponents, to make his presentation. Attorney Shipman stated that the request was not a debate about smart growth. This is a good project, but it is located in the wrong place. When asked by Mr. Davis what has changed in the plan since last year, the question should be what changed in January 2002 when the Superior Court affirmed the findings of Vice-Chairman Greer’s motion saying that the project was not in the best interest of the health, safety, and welfare of the residents because of increased traffic and the project would not be in conformity with surrounding neighborhoods. Mr. Stewart indicated that the plan is in conformity with the New Hanover County Land Use Plan. In 1999, the Board of County Commissioners decided that no increased density should occur in Middle Sound until adequate infrastructure was in place. This infrastructure has yet to be installed. The same policy was incorporated into the Comprehensive Land Use Plan, which was adopted by the Board of County Commissioners in 1999. With respect to issues pertaining to land use and urban design, the issues were to allow higher density where adequate infrastructure exists and to promote mixed use development in undeveloped areas. The policy of New Hanover County is to strive to protect the character of existing residential neighborhoods. The applicant has raised the issue of whether the Future Land Use Technical Scenario Report is part of the Comprehensive Land Use Plan. At the back of the Comprehensive Land Use Plan, there is a list of available reports that were used in development of the Land Use Plan, which includes the Future Land Use Technical Scenario Report. Attached to the back of the Future Land Use Technical Scenario Report is a listing of future land uses, which includes the Ogden Middle Sound area and shows it being reserved as a neighborhood residential area. The areas north of Ogden and undeveloped areas on Highway 17 are reserved for mixed use development which is consistent with the Comprehensive Land Use Plan. If the Board of County Commissioners should decide to rezone the subject property, the Comprehensive Land Use Plan should be thrown out the window. When talking about setting a precedent, he asked how many developers will tell the Board later that the Comprehensive Land Use Plan was not followed when referring to mixed use. Legally, the Board of County Commissioners must zone and rezone in accordance with the Comprehensive Land Use Plan as required by the N. C. General Assembly. With respect to the impact of the project on traffic in Middle Sound, the Commissioners have been provided a report from Mr. Lawrence H. Green, a Traffic Engineer from Cary, North Carolina, who says that the proposed project will generate 2,510 average daily trips on Middle Sound Road, including 252 A.M. peak hour trips and 252 P.M. peak hour trips in the immediate vicinity. Mr. Green also feels that traffic on the Market Street/Military Cut-Off corridor will be increased by 150% and the total traffic impact will be an increase of 660% associated with the project. Ms. Diane Stansberry, a realtor who lists and sells homes in the Middle Sound area, is of the opinion that the proposed project will have a detrimental impact on the value of the surrounding communities especially properties along Harlendale Drive because of the close proximity of the project with congestion and noise from the commercial activities. Attorney Shipman stated that nothing on the plan has changed since last year. In order for the roundabout to occur at the Ogden Elementary School, the County will have to provide more than $200,000 to the Board of Education to provide the necessary parking. The widening project of Middle Sound Road has stopped until County sewer can be installed. It will take years for the traffic problem in Middle Sound to be resolved. This is the reason why mixed use is not appropriate in the Middle Sound area because the infrastructure is not in place to support the use, and it would be contrary to polices set by the County. When reviewing the findings and comments made last year by the Board of County Commissioners, nothing has changed. The project would violate the Comprehensive Land Use Plan and it should not be allowed. The petitioner’s application should be denied to keep other developers from asking for mixed uses in that area. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 152 In closing, Attorney Shipman congratulated Mr. Stewart for a good project but stated it is located in the wrong place. He requested the Board of County Commissioners to deny the petitioner’s application. Chairman Davis opened the floor to hear from persons opposed to the rezoning. Ms. Gloria M. Miller, an adjacent property owner and resident of 1101 Boone Lane, presented 1,243 petitions of Middle Sound residents who are opposed to the rezoning at Demarest Village. She requested the 175 persons in attendance to stand. Mr. Jan F. Van Hoesen, an adjacent property owner and resident of 345 Harlendale Drive, advised that after petitioning and discussing the proposed rezoning with 70 adjacent residents, 47 objected to the rezoning of Demarest Village. Three residents were in favor of the rezoning, 6 residents took neutral positions, and contact with14 was unsuccessful. Attorney Shipman referenced the report and affidavit tendered to the Clerk to the Board and stated that it was abundantly clear that common sense should dictate that the increased density will increase traffic on the Middle Sound Loop Road. The commercial node will increase traffic activity by 500 additional trips during peak A.M. and peak P.M. hours. The traffic consultant representing Mr. Stewart agrees that 500 additional trips will be the impact of the project. The Future Land Use Technical Scenario, which is part of the Comprehensive Land Use Plan, shows that Middle Sound is not an area reserved for mixed development. He requested the Board to deny the rezoning request. In closing, Attorney Shipman requested all documents to be made a part of the record. Chairman Davis requested the Clerk to the Board to make all documents presented as a part of the record. Chairman Davis asked if any member of the Board would like to ask any questions about the traffic report and affidavit that has been made a part of the record. Hearing no comments, Chairman Davis asked if any member of the Board would like to question the affidavit presented by Ms. Diane Stansberry. Hearing no comments, Chairman Davis informed Attorney Rogers and Mr. Stewart that five minutes would be allowed for rebuttal. Mr. Stewart advised that he attended the meeting when the Board of County Commissioners adopted the Comprehensive Land Use Plan in 1999. The Demarest Village project is in compliance with the Comprehensive Land Use Plan and if the project is not approved, the plan should be thrown away. The project exceeds the regulations required by New Hanover County. The plan will enhance the public health, safety and welfare for the community and the plan complies with the Land Use Policies and the Zoning Ordinance of New Hanover County. The plan emphasizes growth control by setting higher standards for conditional use zoning. The plan complies with density limitations and does have the infrastructure in place. The plan provides a way to make Middle Sound a walkable community, a safer community for its residents, and a community contributing toward a healthier county. It is the perfect place to start with mixed use and it will be in harmony with the area. Mr. Stewart noted that Section 7 and Section 8 of the notebook refers to the Future Land Use Technical Scenario which is defined by Mr. Wayne Clark, Development Services Director for the City of Wilmington, as follows: Appendix VIII, Future Land Use Technical Scenarios were developed as a possible alternative land use pattern that was not approved by the Steering Committee and was not adopted by the elected officials of the City or County. It was placed in a technical report appendix for informational purposes. The appendix has no legal bearing and is not relevant to any actual development. Mr. Stewart presented a petition of approximately 230 people in support for Demarest Village and 98 letters of support to be entered into the record. He advised that he did not have as organized a campaign as the opponents. Chairman Davis asked if the people who sent in letters and signed the petition lived in the Middle Sound area. Mr. Stewart responded that 50 to 75 percent of people signing the petition were from Middle Sound with 25% from surrounding areas. He also referenced the census data from Tax Administrator Robert Glasgow and reported that approximately 5,417 people living in the Middle Sound area with 3,439 parcel owners and 4,192 registered voters. Looking at the petitions presented by the opposition, this is not a majority of the people living in Middle Sound. Mr. Frank Voli, a resident and owner of four properties on the Middle Sound Loop Road, spoke on being concerned about property values and stated he did support the Demarest Village project. After discussing this issue with many property owners, it was found that many people are frightened because of misinformation when attending meetings. Rumors have been heard about a gas station or large grocery store being built at Village Square that will require a parking lot to accommodate 6,000 cars that will create massive traffic problems. Many of these people have never seen the plan for Demarest Village and are unaware of the structures to be placed on the property and the ancillary projects, such as sidewalks from the entrance of the Village to the entrance of Queens Point and Providence. They do not know that the N. C. Department of Transportation plans to provide funding for sidewalks to Ogden Elementary School or that Mr. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 153 Stewart will provide $27,000 of design and engineering work free plus $40,000 in impact fees to be used to improve the intersection at the corner of Ogden Elementary School. In closing, Mr. Voli stated that he felt this was an excellent project that will provide benefits to the residents of the Middle Sound area and enhance property values. He requested the Board to consider the benefits and vote for the project. Chairman Davis informed Attorney Shipman that he had five minutes for cross-examination or rebuttal. Attorney Shipman commented on the three parks referenced by Vice-Chairman Greer and stated that the parks would not be for use by the public but for the residents living in Demarest Village. He also referenced the sidewalks and pointed out the County would be responsible for maintenance; therefore, the Board will want to consider the financial impact of maintenance since the applicant did not offer to maintain the sidewalks. Attorney Shipman referenced the issue regarding commercial activity and noted that streets in the development are so narrow that commercial trucks servicing Demarest Village will have to park outside on Middle Sound Loop Road because the road is not wide enough to accommodate large trucks. Attorney Shipman referenced the issue regarding the percentage of Middle Sound that will be rezoned B-1 or R-15 and stated this is not the issue. The County Attorney has concurred that the Future Land Use Technical Scenario map is part of the Comprehensive Land Use Plan. If the Commissioners allow the rezoning, it will be a form of spot zoning and will be illegal for the reasons set forth. He requested the Board of County Commissioners to deny the application. Chairman Davis asked Mr. Stewart if he agreed with the staff findings and proposed conditions presented by the Planning Director. Mr. Stewart spoke on having a brief discussion with Planning Director Hayes about concern within the community regarding the purchase of ten contiguous acres and he assured the neighbors and Board of County Commissioners that the proposed request was not an attempt to rezone these acres. He offered to place a condition on the approval to require the ten acres to remain R-20 Residential. He also spoke on his desire to contribute to the roundabout landscaping and said that discussion had been held with the N. C. Department of Transportation about charging a $1,000 assessment fee on each of the 14 units constructed so a contribution of $14,000 of landscaping can be contributed to the roundabout once the road project is completed. Chairman Davis again requested a response from Mr. Stewart about the findings and conditions presented by the Planning Director. Mr. Stewart agreed with the staff findings and proposed conditions as well as the two other conditions mentioned. Chairman Davis closed the Public Hearing. He informed the audience that the Comprehensive Land Use Plan is not an ordinance but a guide to assist the Commissioners in deciding how to move forward with development in the unincorporated county. He asked if any members of the Board would like to comment. Commissioner Pritchett referenced Attorney Shipman’s presentation and asked when this petition was heard by the court. Attorney Shipman responded that the petition was heard by the New Hanover County Superior Court in November 2001 with the order being executed in January 2002. Commissioner Pritchett strongly objected to hearing for the first time that the petition had been heard by the Court and expressed concern for this being a form of manipulation. Chairman Davis stated for the record that he was aware of the fact that Mr. Stewart appealed the decision made by the Board of County Commissioners a year ago and that the appeal was heard in the New Hanover County Superior Court with the Judge upholding the decision made by the Commissioners. Commissioner Boseman asked Planning Director Hayes if alcohol could be sold in the Conditional Use B-1 District. Planning Director Hayes responded that alcohol could be served and sold in a pub or neighborhood convenience store in the Conditional Use B-1 District. Commissioner Boseman asked Planning Director Hayes to address the map referred to by Attorney Shipman when noting that the use was not in compliance with the Comprehensive Land Use Plan. Planning Director Hayes responded that the map presented by Attorney Shipman was one that was presented during the land use planning process before the final Comprehensive Land Use Plan was presented. The committee never agreed on what a particular land use should be for any area of the County. The map was placed in the technical document as a scenario for future development. When reading the document, the definition for neighborhood-residential does not NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 154 include mixed use; however, the definition of neighborhood residential also includes non-residential uses limited to neighborhood activities with strict performance standards and public review. In this context, it was never anticipated that the use would be an exclusively residential use. Commissioner Boseman asked Planning Director Hayes if he felt that placing a pub on Middle Sound Loop Road would conform to the character of the neighborhood. Planning Director Hayes responded that a village center designed at an acceptable scale and size located within the subdivision does allow the residents to control the activities and hours of operation. Commissioner Boseman requested an explanation on the length of the proposed sidewalk. Planning Director Hayes responded that the petitioner would install a portion of the sidewalk with an application filed for an enhancement grant to provide the connection from the neighborhood and Ogden Elementary School. Commissioner Boseman asked if it would be wise to increase density in the area before addressing existing traffic problems. Planning Director Hayes responded that constructing 14 units would be inconsequential in terms of additional traffic in the area. Commissioner Caster asked if residents of Providence and other neighborhoods south of Demarest Village would have legal standing in this case. County Attorney Copley responded that the legal definition of standing requires the person to be a potentially aggrieved party or negatively affected by the decision rendered by the Board of County Commissioners. Chairman Davis asked Mr. Stewart or Attorney Rogers if the petitioner would like to withdraw, modify, or continue the petition. Attorney Rogers responded that the petitioner did not want to withdraw, modify, or continue the petition. Chairman Davis asked Attorney Rogers if the petitioner would like for the Board to move forward with voting on the petition with the understanding that if the petition is denied, it will be twelve months before another petition could be presented. Attorney Rogers requested the Board to move forward with a vote. Chairman Davis requested a motion from the Board. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Caster to deny the request to rezone 23.58 acres located in the 3100 Block of Middle Sound Loop Road from R-20 Residential to CD(R-15) Conditional Use Residential and CD(B-1) Conditional Use Neighborhood Business based upon increased traffic that could endanger the public health and safety in an already congested area and the use not being in harmony with the area. Commissioner Pritchett agreed with the remarks by Vice-Chairman Greer and stated that she felt this was an excellent mixed use project that should be considered for future development; however, the Middle Sound area was the wrong location. Hearing no further comments, Chairman Davis called for a vote on the motion to deny the request. Upon vote, the MOTION CARRIED UNANIMOUSLY. BREAK Chairman Davis called a break from 8:05 P.M. until 8:15 P.M. PUBLIC HEARING TO CONSIDER A REQUEST FROM DOLORES DOWLESS FOR ISSUANCE OF A SPECIAL USE PERMIT TO PLACE TWO SINGLE WIDE MOBILE HOMES IN AN R-20 RESIDENTIAL DISTRICT LOCATED AT 4052 PARMELE ROAD(S-482, 05/02) Chairman Davis opened the Public Hearing and announced that the special use process requires a quasi-judicial hearing; therefore, anyone wishing to speak must be sworn in by the Clerk to the Board. The following persons were sworn in. Dexter Hayes Dolores Dowless Planning Director Hayes showed slides of the area zoned R-20 Residential in the Castle Hayne area of New Hanover County with views of Parmele Road, the rural agriculture low density zoning across the road, and R-15 Residential zoning on the eastern portion of the property. Pictures were shown of an existing mobile home park located NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 155 at the end of the access driveway which runs parallel with Parcels 3and 4 on the map in the agenda packet. Planning Director Hayes presented the following preliminary findings: 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 based upon the following findings: A.The subject property is located within the Castle Hayne Volunteer Fire Department. B.The site will be served by a private well and septic tank. C.Access to the site is through an existing access easement. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A.The site is located in an R-20 Residential Zoning District. Minimum setbacks for structures can be met. B.Part of the property is within the 100-year flood plain. C.Adequate area exists on the parcel for two dwelling units. The mobile homes will be located on approximately 1.4 acres. 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 based upon the following findings: A.The site is adjacent to an existing mobile home park. A double wide mobile home is also located on an adjacent lot. B.No evidence has been presented that the proposed use will injure the value of adjoining or abutting property values. 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 based upon the following findings: A.The site is classified as resource protection by the New Hanover County Comprehensive Land Use Plan and is within the urban growth boundaries. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. In concluding the presentation, Planning Director Hayes presented the following concerns of the Planning Staff about the proposed request: 1.The proposed mobile homes (2 on one lot and 2 on the adjacent lot) would be placed on separate parcels; however, this could be perceived as another mobile home park, which will appear as an expansion of the existing mobile home park. 2.A better use of the property would be placing double wide mobile homes on the lots since this use is permitted by right under the R-20 Residential zoning. 3.The addition of four (4) mobile home units places an increased burden on this access easement since the property is already utilized by more than six units. Chairman Davis asked if a bad precedent would be set if the Board grants the Special Use Permit. Planning Director Hayes responded that a request of this type is not frequently approved; however, with large tracts in the northern part of the County, there is sufficient land to accommodate mobile homes. Chairman Davis asked how many double wide mobile homes could be placed on the property by right. Planning Director Hayes responded that three double wide mobile homes could be placed on the lots under R-20 Residential zoning without approval from the Board of County Commissioners. Commissioner Caster asked where the existing mobile homes were located. Planning Director Hayes responded the existing mobile homes are located on the private easement access. Chairman Davis asked if the petitioner would like to speak. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 156 Ms. Dolores Dowless, the petitioner, advised that she was a widow and stated it was difficult to pay taxes on the family property. The reason for locating single wide mobile homes on the property is to rent the units to provide sufficient income to pay for the family property. The property was sold 25 years ago, and she recently repurchased the land. Another reason for not placing permanent foundations on the property is because her sons would like to build homes on the lots in the future. Chairman Davis asked Ms. Dowless if she agreed with the findings presented by the Planning Director. Ms. Dowless responded that she concurred with the staff findings as presented by the Planning Director. Chairman Davis asked if anyone in the audience would like to speak in opposition to the request. Hearing no comments, Chairman Davis closed the Public Hearing. Chairman Davis asked if any member of the Board would like to comment. Hearing no comments, he called for a motion. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to grant the Special Use Permit submitted by Dolores Dowless to allow two single wide mobile homes in an R-20 Residential District to be located at 4052 Parmele Road 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 16. PUBLIC HEARING TO CONSIDER A REQUEST FROM DOLORES DOWLESS FOR ISSUANCE OF A SPECIAL USE PERMIT TO PLACE TWO SINGLE WIDE MOBILE HOMES IN AN R-20 RESIDENTIAL DISTRICT LOCATED AT 4046 PARMELE ROAD (S-483, 05/02) 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 Clerk to the Board. The following persons were sworn in: Dexter Hayes Dolores Dowless Planning Director Hayes advised the background information and slides of the property had already been presented in the previous hearing; therefore, he would enter 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 based upon the following findings: A.The subject property is located within the Castle Hayne Volunteer Fire Department. B.The site will be served by private well and septic field. C.Access to the site is through an existing access easement. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following findings: A.The site is located in an R-20 Residential Zoning District. Minimum setbacks for structures can be met. B.Part of the property is within the 100-year flood plain. C.There is adequate area on the parcel for two dwelling units. The mobile homes will be located on approximately 1.4 acres. 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 based upon the following findings: A. The site is adjacent to an existing mobile home park. A double wide mobile home is also located on an adjacent lot. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 157 B. No evidence has been presented that the proposed use will injure the value of adjoining or abutting property values. 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 based upon the following findings: A. The site is classified as resource protection by the New Hanover County Comprehensive Plan and is within the urban growth boundaries. The purpose of the Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. Chairman Davis asked Planning Director Hayes if he had any additional remarks on behalf of the Planning Staff. Planning Director Hayes responded that concerns by the Planning Staff had already been presented in the previous hearing. Chairman Davis asked Ms. Dolores Dowless, the petitioner who had already been sworn in by the Clerk to the Board, if she agreed with the Planning Staff findings. Ms. Dowless concurred with the findings as presented. Chairman Davis asked if anyone from the audience would like to speak in opposition to the request. Hearing no comments, Chairman Davis closed the Public Hearing. Chairman Davis asked if any member of the Board would like to comment. Hearing no comments, Chairman Davis called for a motion. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to grant the Special Use Permit submitted by Dolores Dowless to locate two single wide mobile homes in an R-20 Residential District located at 4046 Parmele Road 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 16. CONSIDERATION OF APPEAL SUBMITTED BY ATTORNEY SUSAN MCDANIEL, ON BEHALF OF THE BEAU RIVAGE HOMEOWNERS ASSOCIATION, REGARDING THE DECISION RENDERED BY THE TECHNICAL REVIEW COMMITTEE WHEN APPROVING THE REVISED PRELIMINARY SITE PLAN OF BEAU RIVAGE AND CAROLINA GREEN ESTATES AT THE BEAU RIVAGE SUBDIVISION LOCATED IN THE 6200 BLOCK ON THE WEST SIDE OF CAROLINA BEACH ROAD (SA-19, 05-02) Chairman Davis reported that this item was a not a Public Hearing but a Subdivision Appeals/Administrative hearing submitted by Attorney Susan McDaniel for the Beau Rivage Homeowners Association appealing the Planning Board’s Technical Review Committee (TRC) decision approving the preliminary site plans of: (a) Beau Rivage and (b) Carolina Green Estates located at Beau Rivage. The Board of County Commissioners will first consider the appeal involving the site plan for Beau Rivage and the attorney representing Beau Rivage will be Mr. John Wessell. The Board will then hear a separate issue involving the preliminary site plan for Carolina Green Estates and the attorney representing Carolina Green Estates will be Mr. David Barefoot. Chairman Davis advised that the only persons allowed to speak will be those called by the attorneys who are representing either the developer or those in opposition. Statements do not have to be under oath. Staff will present a preliminary report and Attorney Susan McDaniel will be allowed fifteen minutes (15) to make a presentation. Then, Attorney John Wessell will be allowed fifteen minutes to make a presentation. Five minutes will be allowed for rebuttal, cross examination, or summation by Attorney McDaniel and Attorney Wessell. The appellant, Beau Rivage Homeowners Association, will have the burden of demonstrating why the TRC decision was in error. The primary issue in this controversy appears to relate to whether preliminary plats can be altered. The Homeowners Association asserts that once a preliminary plat is approved, it cannot be changed even with the TRC consent. The Homeowners Association also states that unless an area is designated on a plat as “future development” that area is no longer available for development. The developer states that the preliminary plan is not final and is therefore subject to change should the TRC approve a new or revised plan. The developer contends that the plan recorded at the Register of Deeds under which lots are to be sold is the final plat. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 158 Planning Director Hayes agreed with the statements made by Chairman Davis and informed the Board that a copy of the revised preliminary plan reviewed and approved by the TRC was included in the agenda packet. He also noted that Senior Staff Planner Sam Burgess had just handed each Commissioner the existing, previous plan for Beau Rivage which has been in place since 1986. The original plan is the primary subject of the appeals. Planning Director Hayes reported that in May, 1986, Beau Rivage received preliminary approval for a total of 1,153 dwelling units under the County’s Performance Residential requirements, which is a different review process from the typical subdivision review process. The 1986 site plan of Beau Rivage displayed approximately 356 single family dwelling lots along with several tracts labeled as “future development” in addition to an 18-hole golf course. The site plan also displayed three means of ingress and egress from the project with the primary entrance on Carolina Beach Road, an entrance on River Road to the west, and the third entrance on Sanders Road to the north near Bellamy Elementary School allowing access to Carolina Beach Road off River Road. From 1986 to the mid 1990s, residential development within the project was relatively slow. During that period approximately 319 lots were recorded. During the same period, several changes occurred within the project, including (1) the County purchased a portion of what was originally in the 1986 plan as the site for the County park on River Road; and (2) preliminary approval of three condominum projects along the Cape Fear River that have been developed by Nathan Sanders out of parcels in the original acreage included in the Beau Rivage Project. This acreage was marked as “future development”. As the project progressed and the developer, Mr. Eddie Lewis, died, some of the property was sold to other developers; however, the Planning Office still views this land as part of Beau Rivage and those segments were submitted as modificaitons and changes to the original preliminary plan. Commissioner Caster asked if the condominum units counted toward the overall original development. Planning Director Hayes responded that the units did count toward the overall original development. The acreage density calculations allowed the transfer of land within the total context of the project. This means that the additional density was achieved by placing units on the Cape Fear River, which was taken from the interior portion of the project where the golf course is located. These density transfers were made within the project. In December 2001, the TRC reviewed a 32-unit proposal for Carolina Green Estates, which is shown as two square parcels on the 1986 preliminary site plan and later became Carolina Green Estates under the December 2001 revisions. This was when the TRC decided to table any future preliminary site plan proposals within Beau Rivage until a revised site plan of the 1986 plan was submitted. Until this time, the Planning Staff had been working from the 1986 plan even though some out parcels had been redone and revised in the preliminary plans for those segments. The overall plan was never revised to incorporate those changes, which became a problem for the Planning Staff in trying to determine the remaining acreage and the land platted. At that time, the TRC and Planning Staff felt that the preliminary plan should be revised to show current development expectations and reflect what had already been approved for those portions of Beau Rivage. Chairman Davis asked if the portion for Carolina Green Estates was marked for future development on the original 1986 preliminary site plan. Planning Director Hayes responded that the parcels were not labeled or marked for any use on the 1986 preliminary site plan. Planning Director Hayes continued the presentation by saying that revisions to the plan were to include: (1) a re-examination of the driveway permit issued for the main entrance on Carolina Beach Road; (2) water pressure flow tests to determine feasibility of fire hydrants; (3) updating the original plan to reflect recent approval of developments such as the condominum projects; and (4) a refined matrix table indicating the current acreage and numbers of plots within the project. Commissioner Boseman asked if fire hydrants would be placed throughout the entire neighborhood or just in front of Carolina Green Estates. Planning Director Hayes explained that when the 1986 Preliminary Site Plan was approved for Beau Rivage, Phase I, there was no requirement in the Subdivision Ordinance for fire hydrants in New Hanover County. Since that time, regulations have been adopted that require fire hydrants to be installed if a water system is in place that has sufficient capacity and flow to support the hydrants. There are water systems in Beau Rivage that can support fire hydrants, and any new sections or revisions submitted will have to install the hydrants. Planning Director Hayes continued the presentation by saying the matrix table was refined under the new plan with calculations based on the balance of the acreage less the land purchased by New Hanover County. The delineation of 404 wetlands was a requirement recommended by the Planning Board. The Beau Rivage revised site plan was presented to the TRC by Attorney John Wessell, representing the Lewis family, the owners of the property at large. The property is zoned R-15 Residential and has private utilities (both water and sewer) and private roads. There were 1,153 lots on the original preliminary site plan, and the revised plan that was approved by the TRC reduced the number to 1,125 units because part of the property was sold to the County which lowered the acreage from 461 on the original plan to 449 on the revised plan. The property is classified limited transition, which means that services are somewhat limited to the area. The property is located in an area without a full range of NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 159 public services. In concluding the presentation, Planning Director Hayes offered to answer questions. He stated that in many cases, a developer with a large tract of land does not know how the property should be developed. County regulations have allowed the developer to submit a plan to develop a certain amount of acreage when a decision is made on a particular type of development. When the property is classified future development or unlabeled on the plat, the property cannot be developed until a revised plan has been submitted and approved in the context of the overall plan, which does revise the original preliminary site plan. Final plans are submitted as projects are built and improvements such as water, sewer, streets, and drainage are completed. The developer will then submit a final map to the Planning Staff showing that all improvements have been made so the developer can begin selling lots and units. Once the Planning Staff has signed off on the map and it is recorded in the Register of Deeds, the developer can begin transferring property to prospective buyers. All final plans and maps must be consistent with the preliminary plan. If there is a major departure from the preliminary plan, such as 10 additional units, the developer would be required to submit a preliminary plan revision. Commissioner Boseman expressed concern that the plan was approved by the TRC when the proposed low income senior housing project is not in conformity with the neighborhood. She also expressed concern for the development in front of the entrance to Beau Rivage creating a safety problem by backing up traffic on Carolina Beach Road. Planning Director Hayes explained that New Hanover County does not have any control over the aesthetic design of income related housing. If nursing care or limited health care is provided in a facility known as personal care facility, a Special Use Permit would be required to allow the use. The County does not become involved with regulations regarding a developer wanting to sell or market property to a segment of the population whether single adults or older adults. He also noted that traffic at the entrance of Beau Rivage is another issue that is not before the Board. The Planning Board and Planning Staff have made some comments and suggested revisions to the development along the entrance road. The issue before the Board is the revision of the overall preliminary plan as well as approval of the 30 unit project across from the Beau Rivage Clubhouse. Commissioner Boseman strongly objected to allowing a developer to come in 16 years later and place low income senior housing in Beau Rivage. She asked if the developer could use the golf course in determining the number of units that can be placed on the preliminary plan. Planning Director Hayes responded that the plan remains valid as long as there is on-going activity on the site. If no activity occurs on the site for two years, the preliminary plan approval becomes invalid. He also noted that New Hanover County does not have a requirement for open space or for a golf course. The Planning Staff reviews the total acreage and the total number of units. If enough acreage is recorded and set aside for the benefit of people purchasing units, it meets the density requirement for that area. The subject property is zoned R-15 Residential which allows no more than 2.5 units per acre, and the developer can proceed with the development under this plan. When the condominium project was started on the Cape Fear River, there was a requirement for additional acreage to be recorded in Beau Rivage to allow for the density to be concentrated on the river. The golf course was platted and recorded as open space to benefit the Beau Rivage residents. The property cannot be used for anything other than open space if the golf course should be closed. Commissioner Boseman expressed concern for using the golf course to determine the number of units just because it was not on the preliminary plan. It is not right for people who have invested their life savings in their homes to have their property values affected by locating a low income senior housing project. People should have a voice in protecting the quality of life when a developer is trying to change the entire area. Planning Director Hayes explained that the County does not require persons purchasing property to have equity in open space areas set aside. One option is for the developer or the private landowner to retain ownership of the open space, which is what happened in Beau Rivage. There are other projects where the buyer purchases a lot and receives equity ownership in the golf course and space. The County could require that open space is deeded to homeowners or deeded to the County to remove ownership of the open space from the developer. The County does not have this regulation in place. Discussion was held on public transportation being provided to seniors living in the housing project. Planning Director Hayes advised that City and County Administrative Staff members are working to combine the New Hanover County Transportation System in the unincorporated county with the Wilmington Transit Authority to serve the entire area in the future. Commissioner Boseman asked if a traffic study had been conducted to determine the impact of the senior housing project on traffic along this segment of Carolina Beach Road. Planning Director Hayes responded that traffic counts were done when the original driveway permits were issued by the NCDOT in 1986 for the three entrance roads. Chairman Davis asked whether open space designated on the preliminary plan can be changed at a later date. Planning Director Hayes responded that once open space is recorded, it cannot be changed. The only open space recorded for this project is the golf course that was platted during the process when the condominium units were recorded NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 160 on River Road. A lengthy discussion was held on flooding and drainage in the Beau Rivage neighborhood. Planning Director Hayes advised that flood plain areas are marked and have to be labeled on the preliminary site plan. The Beau Rivage plan was submitted under the basic minimum 10-year design storm. New projects will be reviewed under the 2, 10 and 25-year design storm and the recently adopted drainage regulations which will provide better drainage systems for all new projects. Discussion followed on the maintenance of the private roads. Planning Director Hayes explained that New Hanover County requires a maintenance agreement for road maintenance of private roads before signing off on the final plat. The homeowners association or some other entity has to be created to maintain the roads before final approval is received. Vice-Chairman Greer asked what will happen if an agreement cannot be reached for maintenance of the private roads. Planning Director Hayes responded that the final map would not be signed off and recorded which means the units could not be sold. Commissioner Pritchett asked if there has been on-going development in Beau Rivage. Planning Director Hayes responded that on-going development has occurred with most of the activity across River Road where the condominiums are being built. After hearing no further comments from the members of the Board, Chairman Davis requested Attorney Susan McDaniel to make her presentation. Attorney McDaniel, representing the Beau Rivage Homeowners Association, began her presentation by saying that the appellant was not contending that the preliminary plan could not be changed; however, the appellant is contending that once a performance residential preliminary plan is approved with designation of open space, it must remain open space pursuant to Section 51-5.2(6) of the New Hanover County Zoning Ordinance. For instance, on the 1986 approved preliminary plan for Beau Rivage, most of the areas that are not divided into lots are denoted “future development”; however, there are certain areas, such as the Carolina Green Estates tract, that are not designated for future development and not designated for subdivided lots. This land is simply not designated. The primary issue is whether or not Section 51-5.2(6) of the Zoning Ordinance specifically says undivided areas other than street rights-of-way and parks shown on the preliminary plats are open space. Section 69.1 and 69.2 of the Zoning Ordinance specifically says once land is declared open space, it always remains as open space. In this particular case, there are two appeals before the Board that are co-mingled to a certain extent. Chronologically, the 1986 Preliminary Site Plan for Beau Rivage was approved and through the years subdivisions have been platted and recorded. In the fall of 2001, the developer submitted a plan to the TRC for the Carolina Green Estates project. The TRC informed the developer that in order to consider the plan, the site plan for Beau Rivage had to be updated and revised for the entire subdivision. On March 13, 2002, the first item on the TRC agenda was to approve the updated and revised site plan for Beau Rivage. This item was tabled, and the next item on the TRC agenda was the preliminary plan for Carolina Green Estates, which was approved by the TRC. Since the process was done out of order, the TRC at its next meeting in April asked the developer to submit another updated and revised plan. By this time, the Carolina Green Estates project had already been erroneously approved the previous month. The reason for the appeal is that the Beau Rivage updated and revised site plan shows the Carolina Green Estates project which should not have been approved. If the updated and revised site plan for Beau Rivage had not been on the TRC agenda and had not been approved, the Carolina Green Estate project would still be appealed. The Carolina Green Estates project should be deleted from the approved subdivision site plan. Chairman Davis asked Attorney McDaniel if she had any other concerns about the Beau Rivage updated plan. Attorney McDaniel responded that the substance of the argument is that the Beau Rivage updated and revised site plan was approved by the TRC on April 10, 2002. Chairman Davis asked if the major concern was designating the open space so clustering could occur. Attorney McDaniel responded that under performance residential development, the developer should have the benefits of density calculations on the acreage. There is no problem with future development being designated on the plat; however, undivided areas with no designated use should be deemed open space and remain open space. Attorney McDaniel requested the Board of County Commissioners to remand the Beau Rivage plan back to the TRC with instructions to remove Carolina Green Estates from the approved revised site plan. She noted that many items and issues in the Zoning Ordinance regarding performance residential development and open space should be addressed and better defined. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 161 In concluding her presentation, Attorney McDaniel referenced the agenda item regarding a moratorium on performance residential development and she requested the Board to approve this item to allow time for performance residential regulations to be more clearly defined in order to avoid instances like this in the future. Chairman Davis expressed appreciation to Attorney McDaniel for the presentation and called on Attorney John Wessell to make a presentation. Attorney John Wessell, representing Beau Rivage Corporation, Inc., the corporation and owner of the remaining undeveloped property within the Beau Rivage Subdivision, spoke on being surprised at the argument made by Attorney McDaniel and stated that it appears the only objection is the fact that Carolina Green Estates is shown on the updated plan for Beau Rivage. He advised that this issue would be addressed more specifically by the representatives of the owners of the development. Attorney Wessell advised that Attorney Kenneth A. Shanklin, and Attorney David Barefoot will make presentations and present exhibits on the open space issue. He requested all documents presented to be made part of the record. Attorney Wessell stated that he totally disagreed with Attorney McDaniel’s interpretation of open space as defined in the New Hanover County Zoning Ordinance. The Commissioners are being requested to accept the fact that since the 1986 Beau Rivage preliminary site plan does not say “future development” or “open space” for the area where Carolina Green Estates will be located, the space should designated as open space. A rational reading of this section says that once a development is fully built out, the remaining property will be designated as open space. This means that when the 1,125 units are completed, the designation of open space will occur. Currently approximately 500 units have been approved. The golf course has already been designated as open space on the 1998 plats recorded. The real issue is consideration of the preliminary plat approval for Carolina Green Estates. The changes to the 1986 map are exactly what the TRC requested Beau Rivage Plantation, Inc. to submit. Attorney Wessell requested the Board to uphold the decision made by the TRC. Chairman Davis commented on being perplexed about the revised preliminary plan for Beau Rivage and asked Attorney McDaniel if the only objection was inclusion of Carolina Green Estates on the preliminary site plan. Attorney McDaniel responded that the objections are: (1) inclusion of Carolina Green Estates on the updated preliminary plan; and (2) the improper order in which the TRC considered these items. Attorney Wessell spoke on this being a non-issue and stated that the developer of Beau Rivage Plantation was instructed by the TRC to submit a plat that showed developments approved for the subdivision. A plan was submitted to the TRC showing that Carolina Green Estates was a preliminary approved subdivision within Beau Rivage. If the Commissioners decide that Carolina Green Estates was improperly approved by the TRC, it would only take a ministerial act to remove Carolina Green Estates from the map. Chairman Davis asked if all parties agreed to stopping at this point and addressing the site plan for Beau Rivage which will be contingent upon whether Carolina Green Estates was properly approved by the TRC. Attorney Wessell responded that he would agree to this process if this was the only issue pertaining to the plan. Commissioner Caster asked Attorney McDaniel if she was saying that under performance residential development any acreage not marked for future development or platted on the plan would be considered open space. Attorney McDaniel responded that any undivided area or unmarked area on a performance residential plan should be designated as open space. Commissioner Caster asked Attorney McDaniel if Beau Rivage Plantation, Inc. had submitted a plan for the correct number of units under R-15 residential development on acreage for Carolina Green Estates, would she have protested this action. Attorney McDaniel responded that she would be opposed to conventional development because this is open space. Chairman Davis asked if there were any restrictive covenants that would apply to Carolina Green Estates. Attorney McDaniel responded that to the best of her knowledge there are no restrictive covenants that apply to Carolina Green Estates. There is a Homeowners Association in place with each of the platted subdivisions having restrictive covenants. These covenants apply only to the platted land. Commissioner Pritchett asked if there were any other changes between the 1986 preliminary plan as submitted and the updated plan with the exception of Carolina Green Estates. Attorney McDaniel responded that the major issue is the Caroline Green Estates project. The other changes in the updated plan were to add subdivisions that have already been built between 1986 and the current date and to add other NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 162 subdivisions that have not been built but have already been approved. Attorney Wessell said that he was not aware of any other changes. Chairman Davis asked if the updated plan included a re-examination of the driveway permit issued for the entrance to Beau Rivage. A lengthy discussion followed on the plan for the entrance into the Beau Rivage subdivision. Commissioner Pritchett stated that she saw a map in the Planning Department that showed a line of condominiums as you enter the subdivision. Attorney Wessell explained that the first map submitted to the TRC did not show Carolina Green Estates or the development at the entrance way. The TRC then requested a map showing all development that has occurred since 1986 including Carolina Green Estates and not showing the development at the entrance way. Commissioner Pritchett asked how the map was marked for the entranceway. Attorney Wessell responded that the entrance area was marked as future development and stated that it would be inappropriate for the Board to discuss this issue since this matter is not part of the appeal. Commissioner Pritchett stated that if the entranceway had not been marked as future development and the Commissioners are being requested to approve a plan showing future development along the entrance, she could not vote for the plan. Attorney Wessell responded that a recorded subdivision plat is on file in the Register of Deeds showing the entrance area designated as future development. Chairman Davis referenced the revised plan before the Commissioners clearly showing the Carolina Green Estates project and asked if the entrance development is shown on the map. Attorney Wessell explained that the entrance development is not shown on the map, which is the map approved by the TRC on April 10, 2002. The entrance development was shown on an earlier map which may have been the map seen by Commissioner Pritchett. Commissioner Pritchett requested a copy of the specific map approved by the TRC on April 10, 2002. Attorney Wessell requested Planning Director Hayes to provide a copy of the map to each Commissioner. Commissioner Pritchett noted that if entranceway on the original plan was not labeled as future development, it should be considered open space which must remain open space; however, it appears on the map just presented that the open space has been switched. Attorney McDaniel noted that unfortunately it appears that something did happen after 1986 when the preliminary site plan for Beau Rivage was approved, which did not show future development for the entrance; however, when plats for Phase I, Section A and B of Beau Rivage were recorded, the words “ future development” were placed on the map for the entrance. This should not have occurred because the final plat would not be consistent with the preliminary approved plan for development. She requested the Board to remand the preliminary site plan for Beau Rivage back to the TRC to remove the Carolina Green Estates project and the words “future development” from the plan. Attorney Wessell again disagreed with Attorney McDaniel’s interpretation and stated that the Zoning Ordinance simply says that open space will be designated. It does not say when open space should be designated or if open space has to be designated. He contended that if open space is to be designated, it will be designated at the point and time the when lots within the development are actually laid out and approved, which has not happened because there are 500 more lots that can be laid out in the subdivision. Attorney McDaniel quoted Section 55.1-2 of the Zoning Ordinance: Performance Residential: In addition to the density limit established in the applicable zone, all performance residential development shall comply with the following regulations: All undivided areas within the development (other than street rights-of-way, parking and structures) shall be designated as open space. The open space shall meet the requirement of Section 69.1 of the Zoning Ordinance. Attorney McDaniel commented on the difference between performance residential development and conventional residential development and stated that the language used in this section says “shall”, which means it has to be done. Attorney Wessell noted that if the theory presented by Attorney McDaniel is accepted, the majority of the space on the approved 1986 plat would have to be designated as open space since the map did not designate divided areas or show the1,125 lots. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 163 Chairman Davis commented on this being the first time that anything was mentioned regarding development at the entrance into Beau Rivage and stated this was not part of the appeal; therefore, the Board should move forward with the two issues of concern. He expressed concern for this issue being discussed as part of the appeal when no information has been provided to the Board. Attorney McDaniel noted that the appeal section of the subdivision regulations simply says that TRC decisions can be appealed to the Board of County Commissioners. The regulations do not say in what form or procedure appeals need to be presented. This is simple case of insuring that open space on the Beau Rivage plat remains as open space. Chairman Davis asked Attorney McDaniel if she had a copy of the original plan to submit as evidence for the record. Attorney McDaniel noted that a plan had been presented to the Board. Commissioner Caster requested Planning Director Hayes to comment on areas that are marked as future development in the 1986 preliminary site plan. Planning Director Hayes explained that a preliminary plan is a drawing or rendering of what may happen with the property. When Attorney McDaniel referenced the section of the Zoning Ordinance requiring all undivided areas to be shown as open space, this regulation is not applied until recording the final map. The property cannot be divided until it is actually surveyed. Any area that is not proposed to be sold to individual buyers of the property is an undivided area and has to be designated as open space with the recording of the final map. Vice-Chairman Greer expressed concern that the plats and maps are misleading to the citizens because they do not look at maps but automatically assume that what is marked on the map is correct. He stated that if the Board followed the interpretation submitted by Attorney McDaniel, there would be no appeal because future development would mean future development, lots would be lots, and the remaining space would be designated as open space. Attorney Wessell commented on confusion between a preliminary plat and final plat. He advised that no developer can sell lots from a preliminary plat. Lots can only be sold from a recorded final plat. This North Carolina General Assembly has controlled development through enabling legislation. Preliminary plats are changed all the time in counties and municipalities throughout the State. Vice-Chairman Greer suggested changing the procedure in order to eliminate the confusion. Attorney Wessell advised that in order to make a change of this type, he felt that enabling legislation would have to be obtained from the General Assembly. Planning Director Hayes responded that frequently the developer will want to change the preliminary plan because several years can pass before the final plan is recorded. It would be difficult to implement a regulation when many developers do not know exactly how some of the property will be used in the future. Vice-Chairman Greer requested Planning Director Hayes to explain why the TRC requested the plan to be redrawn and why a change was made before the Commissioners received the plan. Planning Director Hayes explained that several things have occurred with the property over the years. Some of the acreage was sold which changed the density calculation for the remaining acreage. The Carolina Green Estates project cannot stand alone as a separate preliminary plan and can only exist as part of Beau Rivage. There are 30+ units on 2.5 acres of land which is not permitted under R-15 Residential zoning; therefore, the remaining acreage in the entire subdivision must be reviewed. The Commissioners should only be considering the changes and modifications to the Beau Rivage preliminary plan. Carolina Green Estates is not a separate preliminary plan and is part of Beau Rivage. Vice-Chairman Greer expressed concern for the TRC requesting a revision to the preliminary plan and asked why a change was accepted before the Board received the revision. Planning Director Hayes responded that he was not sure, but the TRC did go back and forth on whether to consider the overall plan before looking at the small plan. After hearing no further comments, Chairman Davis requested Attorney David Barefoot to make his presentation. Attorney Barefoot, representing Beau Rivage Plantation, Inc., advised that it would not make a difference if the preliminary plan was approved for the entire project or for Carolina Green Estates because everyone knows that 1,153 units were to be built. He said Attorney McDaniel made their side’s argument when she said she was not opposed to the preliminary plan and admitted that the preliminary plan could be changed. She is concerned about changing the open space. The Commissioners must consider the real purpose of open space. There is no way to rely on a preliminary plat, and the Commissioners are bound by law to rely on the final recorded plat. Attorney Barefoot noted that Attorney McDaniel has not argued that the TRC did not comply to the law, but she has implied that the ordinance says that open space cannot be changed. When reading Section 69.1, it says in the first sentence that... “all open space may be reserved and offered for identification to the County for use as parks, recreation NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 164 areas, school sites, or for other public purposes”. The second sentence says that... “any space not offered for dedication to the County shall be designated as private open space”. When reading the two sentences together, the second sentence means that any open space that is not designated as private space shall be private open space. When reviewing Section 69.2, Paragraph 13, it says that...“open space must be designated on the plat.” When the developer applies for the final plat, open space must be designated. Since Attorney McDaniel has admitted that the preliminary plat can be changed, what difference does it make if open space has been designated. Chairman Davis stated that he felt designation of open space on a map would make a difference to people purchasing a home in Beau Rivage. Attorney Barefoot responded that the point must be clarified. He stated that no one can rely on a preliminary plat. Landfall now has 243 maps recorded and the preliminary plan has been changed. He requested Attorney Kenneth A. Shanklin to complete the presentation. Attorney Shanklin, representing Wilson and Angelia Ki, appellants, and co-counsel with Attorney Barefoot, stated that the purpose of his presentation was to discuss the law. After serving on the TRC for a number of years and serving as Chairman of the Planning Board for five years, he was familiar with the process. If the logic of this appellant is followed, the Board will question and jeopardize a number of subdivisions such as Landfall and other performance residential developments. Performance residential development provides a choice to the developer in how a piece of property can be developed. Performance Residential development is a special zoning classification that allows the developer the choice of developing a piece of property by conventional methods, R-10, R-15, R-20, or Performance Residential. Under performance residential development, a tract of land is developed setting aside open space and condensing the remaining acreage. This is a good form of development. The zoning process is granted through enabling North Carolina General Statutes. The words, sketch plan and preliminary plan, used in the New Hanover County Subdivision and Zoning Ordinances cannot be found in the general statutes. An article written by David Owens, a noted attorney with the N. C. Institute of Government, commented on not finding a reference to a sketch plan or preliminary plan in the enabling statues, but stated the terms are used widely throughout the State of North Carolina. The Stephens Company v. Myers Park is a case out of Charlotte, N. C. that involved a developer recording a key map showing farmlands to be used for development and roads. As the developer began developing the property into subdivisions, each subdivision was recorded. There was one particular tract placed on record that was withdrawn on the final plat and recorded with a reconfiguration of the road. The major issue was whether the key map constituted rights of all persons purchasing lots in the overall development. The courts ruled that it did not because the key map was nothing more than a concept. In the brief submitted to the Commissioners, the following issues have been addressed. •Are there any vested rights of the property owners in Beau Rivage to the preliminary plat? According to the Stephens v. Myers Park case, the answer is no. •Are there any vested rights in the preliminary plan by the property owners in Beau Rivage? According to River Birch v. City of Raleigh involving open space and common areas, the late Justice Myers, a noted municipal lawyer on the Supreme Court, ruled that final approval is a requisite to the recording of the plat, and the recording is a prerequisite to the sale of lots in reference to a subdivision plat. However, recording of the plat still is not sufficient to create an interest in the common areas for the benefit of the subdivision homeowners. There must be purchasers of lots subject to deeds that reference a final recorded plat. The two-step process, the preliminary and final, recognizes the fact that until a plat of the proposed subdivision is properly recorded, there is no assurance that the subdivision will ever be established. The act of recording brings the subdivision into being and makes it a reality. Prior to recording, the use and purpose of the subdivision or the plat could have been abandoned altogether. Thus, it is conceivable that property owners may never acquire rights in some common areas shown on the preliminary site plan and may acquire rights in other areas that were not shown as common areas on the preliminary site plan but that are shown as common areas on the final plat. Attorney Shanklin noted that based on North Carolina case law, which is the final word in the State, the final plat is what makes the difference. The preliminary plan is conceptual and can change. If you apply these cases (which have not been overturned) to Section 51.5-2 Performance Residential, in the County Ordinance, it notes that the development is the parameter tract that is being developed for the Beau Rivage Subdivision, which is the entire tract. All undivided areas within the development other than street rights-of-way, parking, and structures shall be designated as open space. The developer designates open space, decides how the property will be developed and submits a preliminary plan which is an economic concept. The Planning Department studies the concept and tweaks it or makes changes. With reference to Section 69.2 in the County Ordinance, regarding submission of site plans (plural not singular) for Performance Residential in density developments, it says the plan must show the boundaries of all open space areas, which means the meets and bounds have to be marked open space. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 165 Chairman Davis asked Attorney Shanklin if he would address the fact that the original 1986 site plan did not have a designation for any development at the entrance of the Beau Rivage Subdivision, but is now designated future development. Attorney Shanklin explained that approximately 30 maps of Beau Rivage are included in the packet submitted to Commissioners. On the final plat, the entrance area is marked as future development in 1986, but not in 2002. If you accept the argument of the appellants, a subdivision map could never be changed. A number of changes occur between preliminary plats and final plats. Chairman Davis asked Attorney Shanklin if his argument in response to Attorney McDaniel’s position is that the entrance area was marked future development. Attorney Shanklin responded that future development was marked on the final plat recorded in the Register of Deeds Office, which is the most important document. It was also marked as a divided area and nothing was marked as open space on this first preliminary map. The first preliminary map does not show the entire tract. The County Ordinance does not require the allocation of open space. If you can alter lots, you can alter open space. The 1986 preliminary site plan shows that the land was for single family dwellings and several multi-family areas. In concluding the presentation, Attorney Shanklin noted that North Carolina case law supports his position. Chairman Davis informed Attorney McDaniel that she had five minutes for rebuttal. Attorney McDaniel spoke on making strong arguments and stated that it was incumbent upon the Board not to follow blindly customs and practices that do not make sense. She urged the Commissioners to follow an interpretation of the Zoning Ordinance that does make sense and stated the Stephens v. Meyers and River Birch cases do not answer the question before the Board. Final plans are significant when it comes to the sale of lots, but Section 51.5-26 says that under performance residential development, “all undivided areas within the development shall be designated as open space”. When people purchased property in Beau Rivage, a gated upscale community, they relied upon the ordinance which says that open space is open space. If the developer had wanted to develop these areas, why were they not marked for future development when other areas were marked for future development. Attorney McDaniel concluded the presentation by requesting the Board to remand the revised Beau Rivage site plan back to the TRC with instructions to deny approval of the Carolina Green Estates project, remove the project from the Beau Rivage site plan, and remove words “future development” from the site plan to make it consistent with the original 1986 site plan. Chairman Davis asked Attorney McDaniel if she was implying that the cases cited by Attorney Shanklin are distinguishable in their facts from this case. Attorney McDaniel responded that the Stephens v. Myers Park Homes case is a 1921 Supreme Court case that dealt specifically with dedication of streets and alleys for the use of people who purchased lots. It is important to understand that many Justices on the Supreme Court have a good understanding of real property. In this case, the key map was placed on record for the benefit of attorneys searching titles. The Court said that no sales were ever made by the use of the key map and noted that it was not sufficient to affect the dedication of the streets shown thereon. In the Beau Rivage appeal, the issue is not the dedication of streets or easements, but interpretation of the Zoning Ordinance adopted by the County outlining the requirements for performance residential development. Neither the Stephens v. Myers or River Birch cases deal with a specific ordinance designating open space which makes the cases distinguishable. Attorney Shanklin stated that the Myers v. Park case was mentioned because it dealt with the common law rights to the preliminary plan. The River Birch case was mentioned because it involved the City of Raleigh Zoning Ordinance and the concept of the preliminary site plan. Under Raleigh ordinances, the case refers to the departments which inspect the site plan and mentions open space. This case dealt with the authority of the City of Raleigh to have open space and require the open space to be set aside. The Court stated that this right existed under the enabling State Statutes. Chairman Davis asked if any member of the Board would like to comment Hearing no further comments, Chairman Davis called for a motion on the decision of the TRC concerning the preliminary site plan for Carolina Green Estates at Beau Rivage. Motion: Commissioner Boseman MOVED, SECONDED by Commissioner Pritchett, to remand the updated plan to the TRC with instructions to remove Carolina Green Estates from the plan and designate it as open space. Vice-Chairman Greer advised that Attorney Shanklin did present good examples of the law and its appears the law applies to this case. Commissioner Caster agreed with Vice-Chairman Greer and stated he could not support the motion based upon the evidence presented. Chairman Davis called for a VOTE ON THE MOTION. Upon vote, the MOTION CARRIED 3 TO 2. Vice- Chairman Greer and Commissioner Caster voted in opposition. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 166 Chairman Davis called for a motion concerning the approval of the TRC action regarding the updated preliminary site plan for Beau Rivage. Commissioner Pritchett asked if she should make a motion to remand the updated preliminary plan to the TRC for determination of the proper use of areas not designated on the 1986 preliminary plan. Chairman Davis explained that the objection by the Homeowners Association is the inclusion of Carolina Green Estates on the 1986 preliminary plan and the objection to the inclusion of the verbiage, “future development” in an area that was not originally marked on the plan. Vice-Chairman Greer noted that he was not sure what the Board was voting on because the Commissioners have already voted to remand the plan to the TRC. Attorney McDaniel explained that the only issue before the Board is whether the update and revised plan approved this year should have “future development” marked above and below the entry road into Beau Rivage when this was not marked on the 1986 approved plan. Since nothing was shown on the 1986 plan, the Commissioners are being requested to remove this verbiage from the plan when the TRC removes the Carolina Green Estates project. Vice-Chairman Greer noted that Attorney Shanklin provided a map showing future development on the 1986 plan. Attorney McDaniel advised that Attorney Shanklin provided a recorded plat that does show future development. It might have been recorded in 1986, but it is a different plat from the 1986 preliminary site plan which does not have this language. The preliminary site plan does not show the language and the final recorded plat does show the verbiage. The subdivision regulations say that the final plat must be substantially consistent with the preliminary plat, which is not the case. Commissioner Caster requested an explanation of where the future development would end. Attorney McDaniel explained the future development will end on Lot 2 at the bottom of the map so it will be consistent with other areas marked future development. After a lengthy discussion on the maps provided, Attorney Shanklin noted that his clients, Wilson and Angela Ki, owners of the tract next to the road, received rejection of the preliminary plan at the end of last year. This issue has been appealed and has not been heard by the Board of County Commissioners; therefore, the Commissioners should not continue to discuss or render a decision on this matter. Chairman Davis asked Attorney McDaniel if the statement by Attorney Shanklin was correct. Attorney McDaniel responded that she was not interested in making a determination on an appeal that was not before the Board. After further discussion on needing to table any decision concerning the overall site plan for Beau Rivage until the Ki appeal is heard by the Board on May 20, 2002, Commissioner Pritchett withdrew her motion. County Attorney Copley agreed with tabling the issue and noted that she was concerned about eliminating the Carolina Green Estates project from the plan because when this issue is heard in Court, argument could be made for “the taking of a piece of property”, which could become a complicated legal issue. Attorney Wessell noted that if the Board should decide to table approval of the preliminary plat, there is another subdivision in Beau Rivage that has been presented to the TRC at the sketch plan level. If this action is taken, all future projects for Beau Rivage will have to be delayed until this issue is resolved by the Court, which could be a considerable amount of time. Chairman Davis expressed appreciation to Attorney Wessell for making this point. Attorney McDaniel informed the Board that the sketch plan for the subdivision submitted to the TRC was already designated as future development on the original plan; therefore, this decision will not have any impact on the subdivision. The decisions being made by the Board only affect areas designated future development versus open space. The subdivision referenced by Attorney Wessell should not be affected. Attorney Wessell informed the Board that if no action is taken on the map, the preliminary plat submitted to the TRC will be in limbo because the plan is not approved or disapproved. If there is no problem with other developments in Beau Rivage proceeding with the preliminary plan in a limbo status, there is no problem. However, if the Planning Staff refuses to allow other development because the map is in limbo, there will be a problem. Attorney Barefoot noted that if the Board votes to designate the land as open space as adopted in the first motion, this means the property cannot be developed. This will be a taking of property that will cost over $260,000 not including attorney fees. He requested the Board to reconsider its previous action. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 167 After a lengthy discussion on allowing the County Attorney to meet with all parties involved so see if an agreement could be reached, Commissioner Pritchett suggested rescinding the vote and tabling the issue until May 20, 2002, since this is not a Public Hearing. County Attorney Copley stated that she had just been informed that the Ki appeal will be heard on May 20, 2002; therefore, the Board may want to table the issue. Motion: Chairman Davis MOVED, SECONDED by Commissioner Caster, to rescind the vote previously taken and continue the matter until the May 20, 2002 meeting with no further evidence being presented to the Board of County Commissioners at that meeting. Time will be allowed for the Commissioners to discuss the appeal. Upon vote, the MOTION CARRIED 4 TO 1. Commissioner Boseman voted in opposition. Chairman Davis strongly objected to this item not being placed on the agenda as two separate items. He expressed concern for the manner in which the appeal was presented and apologized for the inconvenience caused to interested citizens who took time to attend the meeting. Commissioner Pritchett commented on the late hour and suggested reconvening the meeting to Tuesday morning. After discussion, the Board decided to finish the items on the agenda. BREAK Chairman Davis called a break at 10:30 P.M. until 10:45 P.M. PUBLIC HEARING TO HEAR PUBLIC COMMENTS ON PROPOSED FRANCHISE AGREEMENT FOR CHARTER COMMUNICATIONS TO PROVIDE CABLE-TV SERVICE AND APPROVAL OF THE FRANCHISE AGREEMENT - FIRST READING Chairman Davis opened the Public Hearing. County Attorney Copley informed the Board that pursuant to North Carolina General Statutes, two readings of the franchise agreement would be required before final approval by the Board of County Commissioners. She reported on the number of meetings held with officials of Charter Communications to negotiate an agreement that would meet the need of the citizens and offered to answer questions. Commissioner Pritchett asked if the Federal Point Volunteer Fire Department will be provided cable service at its new location near Snows Cut on Carolina Beach Road and if the Carolina Beach Volunteer Fire Department would be provided service at the Charlotte Avenue Fire Station. After discussing this issue with officials from Charter Communications, it was agreed to provide cable service to both fire departments. Chairman Davis asked if anyone from the audience would like to speak in favor of the franchise agreement. Mr. Mark Lanier, Special Assistant to the Chancellor of UNCW, reported that The Learning Network (TLN) is a partnership of New Hanover County Public Schools, Cape Fear Community College (CFCC), and the University of North Carolina at Wilmington (UNCW). All three partners use TLN to inform the citizens of the County about community events and other news from educational institutions that serve the County. Funding is needed for TLN to continue its operation through the existing cable franchise fees paid to the City of Wilmington and New Hanover County. The Wilmington City Council will be requested to contribute a one-time funding appropriation in the amount of $35,000 and thereafter continued funding of $25,000 per year for the three partners. The Board of County Commissioners will be requested to make the same contribution. Chairman Davis asked Mr. Lanier if he was asking the Board to consider a funding request. Mr. Lanier responded that he was present to share some information on the TLN to see if the Board would need additional information before authorizing the transfer of funding from the franchise fees collected to the TLN. County Manager O’Neal requested Mr. Lanier to contact him about the funding request since Staff is in the process of preparing the FY 2002-2003 budget. Hearing no further comments, Chairman Davis asked if anyone from the audience would like to speak in opposition to the franchise agreement. No one spoke. Chairman Davis closed the Public Hearing and called for a vote. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to approve the Charter Communications Franchise agreement as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. A second reading of the franchise agreement will be held on May 20, 2002. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 168 PUBLIC HEARING TO CONSIDER APPROVAL OF STREET ADDRESSING STANDARDS AND PROCEDURES AND ADOPTION OF AMENDED ORDINANCE, CHAPTER 47, ARTICLE IV, SECTION 47- 109 Chairman Davis opened the Public Hearing. Planning Director Hayes requested the Board to consider adopting the proposed Addressing Standards and Procedures Manual to use as the operating guide to assign names and addresses of streets. It is hoped that all jurisdictions in the County will use the same guidelines so it will be an official countywide document. He also requested the Board to consider an amendment to Chapter 47, Article IV, House Numbers, Procedures and Display of Official Numbers, regarding the sanction for violators and noted that several notices will be forwarded to violators before the $150 fine is imposed. Discussion was held on whether the violator could appeal the fine. Deputy County Attorney Kemp Burpeau advised that an appeal could be filed with the County Manager and/or his designee. If the violator refuses to pay, the County will bring a collection action and the case would be carried to Court. Chairman Davis asked if anyone from the audience would like to speak in favor of the County adopting the proposed standards and procedures. Hearing no comments, Chairman Davis asked if anyone from the audience was opposed to the County adopting the proposed standards and procedures. Hearing no comments, Chairman Davis closed the Public Hearing and requested direction from the Board. Commissioner Pritchett requested voting separately on the two issues. Chairman Davis called for a motion to adopt the Addressing Standards & Procedures Manual. Motion: Commissioner Boseman MOVED, SECONDED by Vice-Chairman Greer, to adopt the Addressing Standards & Procedures Manual as the official document detailing the operational addressing procedures for New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the manual is on file in the Planning Department. Chairman Davis called for a motion to adopt the ordinance amending Chapter 47, by adding an enforcement section. Motion: Commissioner Boseman MOVED, SECONDED by Commissioner Caster, to approve an ordinance amending Chapter 47, Article IV, Section 47-109 to add an enforcement section to impose a $150 fine for persons failing to adequately display house numbers after several notifications. Commissioner Pritchett expressed concern for requiring a person to comply to the numbering system when that person has a valid reasoning for not wanting to change a house number. Chairman Davis informed Commissioner Pritchett that if a person died because the emergency team could not find the location of a home, the County could be charged with a wrongful death lawsuit. Commissioner Pritchett responded if a person decides not to use the numbering system, that individual should be informed about the possibility of not being picked up in case of an emergency. Chairman Davis called for a vote on the ordinance. Upon vote, the MOTION CARRIED 4 to 1. Commissioner Pritchett voted in opposition. Since the ordinance did not receive a unanimous vote at the first reading, a second reading will held on May 20, 2002. PUBLIC HEARING ON APPLICATION FOR RURAL OPERATING ASSISTANCE PROGRAM FUNDING Chairman Davis opened the Public Hearing. Assistant County Manager Patricia A. Melvin reported that New Hanover County has been notified that the County is eligible to receive Rural Operating Assistance Program funding in the amount of $131,568 for FY 2002-2003. The funding will be appropriated as follows: Elder/Disabled Assistance$79,333 Work First Assistance$17,834 Rural General Public Assistance.$34,401 In closing, Assistant County Manager Melvin advised that New Hanover County has also been informed that the County can apply for additional discretionary funds from the Rural General Public program in the amount of $49,920. There is no County match required for receipt of funds. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 169 Chairman Davis asked if anyone from the audience would like to speak in favor of the grant application. After hearing no comments, Chairman Davis asked if anyone from the audience would like to speak in opposition to the grant application. Mr. Donald Sullivan, a concerned citizens, asked if there were any strings attached to the funding from the State. Assistant County Manager Melvin responded that no local match is required. The only stipulation is that the funding must be spent as allocated by the State. Hearing no further comments, Chairman Davis closed the Public Hearing and called for a motion. Motion: Vice-Chairman Greer MOVED, SECONDED by Commissioner Boseman, to approve the filing of the grant application to receive funding from the Rural Operating Assistance Program. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSIDERATION OF A MORATORIUM ON PERFORMANCE RESIDENTIAL DEVELOPMENTS Planning Director Hayes reported that the Board requested the Planning Staff to prepare some recommendations regarding appeals from performance residential projects. Staff has been working with the Planning Board to prepare recommendations, and some Commissioners feel that a moratorium should be placed on this type of development until changes can be made in the Zoning Ordinance regarding the appeal process. The residential performance appeals primarily involve large projects that have been on-going for a number of years. With the market and zoning changes occurring through the years, developers will frequently submit a plan to the TRC for a different use of the remaining property. Many of the property owners are opposed to the change because they feel the original plan has been changed. The Planning Board is in the process of trying to address these type of issues. Chairman Davis explained that if the Board decides to proceed with pursing a moratorium on performance residential development, two weeks notice will have to be given and a Public Hearing scheduled for the Board to consider this action. In discussion, Commissioner Boseman spoke on the need to protect the quality of life and future growth in New Hanover County and stated the Beau Rivage appeal was an example why the ordinance should be amended. Further discussion was held on the time frame for the moratorium. Planning Director Hayes informed the Board that Staff has drafted the language to change the appeals process and he suggested scheduling a joint meeting of the two boards to discuss the proposed recommendations. Chairman Davis expressed concern for imposing a moratorium but stated he was in favor of expediting regulations regarding the performance residential appeals process. After a lengthy discussion on trying to hold a meeting with the Planning Board, County Manager O’Neal suggested that the Planning Board should hold a Special Meeting to review the text amendment prepared by the Planning Staff and present the proposed text amendment to the Board as a Public Hearing item on July 8, 2002. Consensus: After discussion, it was the consensus of the Board to accept the recommendation of the County Manager and hear the text amendment on July 8, 2002. MEETING CONVENED FROM REGULAR SESSION TO HOLD A REGULAR MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Chairman Davis convened from Regular Session at 11:58 P.M. to hold a meeting of the Water and Sewer District. Chairman Davis reconvened to Regular Session at 12:15 A.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. Mr. Donald Sullivan, P. O. Box 3061, Wilmington, N. C. and a retired Lieutenant Colonel in the U. S Air Force, passed out a three-page information sheet regarding illegal immigrants, and he urged all local, state, and federal governments to enforce existing immigration laws to prevent illegal entry into the United States. He requested the Commissioners to direct local law enforcement agencies to actively pursue illegal immigrants to resolve the problem in New Hanover County and the City of Wilmington before it was too late. After discussion, Chairman Davis expressed appreciation to Mr. Sullivan for his remarks and stated due to the lateness of the hour, the Commissioners would read the information presented and decide if it should be placed on a future agenda. Mr. Sullivan stated that he looked forward to hearing from the Board. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 29 MINUTES OF REGULAR MEETING, MAY 6, 2002PAGE 170 ADDITIONAL ITEMS Discussion of Nominations for the Coastal Resources Commission Commissioner Caster asked Assistant County Manager Dave Weaver if he had prepared some nominees for the Board of County Commissioners to forward to Governor Easley as applicants to be considered when making appointments to the N. C. Coastal Resources Commission. Assistant County Manager Weaver responded that he was in the process of preparing the nominations and would forward a list of nominees within the next week. Discussion of Lights at Ogden Park Vice-Chairman Greer spoke on talking to Assistant County Manager Dave Weaver about the lights on one ballfield at Ogden Park and asked if this issue had been resolved. Assistant County Manager Weaver responded that Staff was checking into this matter and the problem would be resolved. Discussion of a Study Committee to Plan for Development along U.S. Highway 17 By-Pass Commissioner Boseman asked County Manager O’Neal if any progress had been made on forming a study committee to review the Highway 17 By-Pass as suggested by the Wilmington Realtors Association. County Manager O’Neal advised that he would check into this matter and report back to the Board. Announcement of Legislative Briefing Sponsored by the N. C. Association of County Commissioners County Manager O’Neal announced that the Legislative Briefing of the N. C. Association of County Commissioners was scheduled on Wednesday, May 29, 2002, in Raleigh, North Carolina. He requested members of the Board to contact the Clerk to the Board if they plan to attend so arrangements can be made. The primary topic will be the State budget, and the meeting will start at 9:00 A.M. and conclude at 2:00 P.M. CLOSED SESSION Chairman Davis called for a motion to convene to Closed Session pursuant to N.C.G.S. 143-318.11(5) concerning the purchase of real property and pursuant to N.C.G.S. 143-318.11(6) involving a personnel matter. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Caster, to call a Closed Session to discuss the purchase of real property and a personnel matter. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Davis convened to Closed Session at 12:30 A.M. Chairman Davis reconvened to Regular Session at 1:11 A.M. Chairman Davis announced that no official action was taken in the Closed Session regarding the personnel matter; however, Staff was instructed to pursue negotiations in purchasing certain real property located in New Hanover County. ADJOURNMENT Hearing no further comments from the Board, Chairman Davis called for a motion to adjourn. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Boseman, to adjourn. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Davis adjourned the meeting at 1:15 P.M. Respectfully submitted, Lucie F. Harrell Clerk to the Board