2001-10-01 Regular Meeting
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 802
ASSEMBLY
The New Hanover County Board of Commissioners met in Regular Session on Monday,
October 1, 2001, 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 everyone present.
INVOCATION AND PLEDGE OF ALLEGIANCE
Reverend John D. Burton, Pastor of St. Stephen AME Church, gave the invocation.
Commissioner Nancy H. Pritchett led the audience in the Pledge of Allegiance to the Flag.
APPROVAL OF CONSENT AGENDA
Chairman Davis asked if any member of the Board would like to discuss or remove an item
from the Consent Agenda. After hearing no comments, Chairman Davis called for a motion to
approve the Consent Agenda.
Motion:
Commissioner Boseman MOVED, SECONDED by Vice-Chairman Greer, to approve the
items on the Consent Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY.
CONSENT AGENDA
Approval of Minutes
The Commissioners approved minutes of the following meetings as presented by the Clerk
to the Board.
Regular MeetingSeptember 17, 2001
Time Warner Franchise Renewal Work SessionSeptember 17, 2001
Special Meeting with City CouncilAugust 29, 2001
Authorization to Submit Program Agreement to the Department of Juvenile Justice and
Delinquency Prevention (DJJDP) to Fund Juvenile Day Reporting Center
The Commissioners authorized the Juvenile Day Reporting Center to submit a Program
Agreement to the Department of Juvenile Justice and Delinquency Prevention (DJJDP) to receive
funding for the Juvenile Day Reporting Center. The Juvenile Day Reporting Center has been
established to manage court ordered youths instead of placing them in restrictive more expensive
detention environments. Through a collaborative effort with the schools, the DJJDP is providing
funding in the amount of $188,042, and the County anticipates receiving $139,500 from the New
Hanover County School System to provide teachers and a part-time social worker. The County’s
contribution is a Resource Officer for the schools.
Acceptance of Partnership for Children Revised Grant for the Library and Approval of
Associated Budget Amendment #02-0054
The Commissioners accepted the Partnership for Children Revised Grant for FY 2002 in the
amount of $96,222 for the Library and approved Budget Amendment #02-0054 as listed below. The
Library Director was authorized to sign the necessary grant documents. The funding will be used
to staff and provide materials to area child care centers. No County funds are required.
Budget Amendment #02-0054
ADJUSTMENTDEBITCREDIT
Partnership for Children Grant$17,661
Temporary Salaries$18,594
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 803
FICA 1,540
Telephone 76
Postage 34
M&R - Equipment$ 350
Printing 160
Supplies 875
Books 1,870
Employees Reimbursements $ 672
Explanation:
To adjust the budget to the actual amount of grant award effective through December
31, 2001. The allocation for the last half of the year will be made and budgeted at a later date.
Authorization for the Library to Apply for an EZ-LSTA Digitization Demonstration Grant to
Digitize and Catalog a Portion of the Pamphlet Collection
The Commissioners authorized the Library to submit an EZ-LSTA Digitization Demonstration
Grant application in the amount of $48,171. Funds will be used to digitize and catalog a portion of
the Library’s pamphlet collection to make it available to the public on the Internet. The project will
cover the history of Wilmington from 1840 to 1960, representing the period from the days of the
railroad through Hurricane Hazel.
Authorization for the Cape Fear Museum to File a Grant Application to the Institute of
Museum and Library Services
The Commissioners authorized the Cape Fear Museum to file a grant application in the
amount of $19,879.72 to the Institute of Museum and Library Services (IMLS) for a 50/50 matching
Conservation Project Support grant with a training component. If the grant is awarded, it will fund
a Detailed Condition Survey of 330 metal objects in the Museum collection. The educational
component will fund production of a 30-minute training video on conserving metal artifacts.
Adoption of Resolution to Add Roads to the N.C. Highway System
The Commissioners adopted a resolution to add roads in Courtney Pines Subdivision to the
N.C. Highway System.
A copy of the resolution is hereby incorporated as a part of the minutes and is contained in
Exhibit Book XXVII, Page 8.
Adoption of Resolution Authorizing Sale of Real Property Jointly Owned by the City of
Wilmington and New Hanover County
The Commissioners adopted a resolution authorizing the sale of jointly owned City and
th
County surplus property located on Rankin Street at the north end of 16 Street. The offered price
is $5,900 and the tax value is $5,164. The offer has been advertised for upset bid in accordance with
N.C.G.S. 160A-269, and there are no qualifying upset bids for the identified parcel(s).
A copy of the resolution is hereby incorporated as a part of the minutes and is contained in
Exhibit Book XXVII, Page 8.
Approval of Budget Amendment #2002-12-Sheriff’s Department
The Commissioners approved the following Budget Amendment:
ADJUSTMENTDEBITCREDIT
Controlled Substance Tax funds$5,654
Extended Project Expense$5,654
Explanation
: To budget additional revenue received September 5, 2001. Controlled Substance Tax
funds are budgeted as received and must be used for law enforcement activities as deemed necessary
by the Sheriff.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 804
Approval of Budget Amendment #2002-13 - Federal Forfeited Funds - Sheriff’s Department
The Commissioners approved the following Budget Amendment:
ADJUSTMENTDEBITCREDIT
Federal Forfeited Property Funds$6,471
Extended Project Expense$6,471
Explanation
: To budget additional revenue received September 12, 2001. Federal Forfeited
Property funds are budgeted as received and must be used for law enforcement activities as deemed
necessary by the Sheriff.
ACTION DEFERRED ON RECLASSIFICATION OF FUTCH CREEK TO AN
OUTSTANDING RESOURCE WATER (ORW)
Chairman Davis advised that he had received comments from some members of the Board
about the need to hold a Public Hearing on reclassifying Futch Creek as an ORW before taking
action. He requested direction from the Board.
Consensus:
After hearing from Commissioner Boseman and Vice-Chairman Greer about the need
for the public to be aware of the reclassification, it was the consensus of the Board to schedule a
Public Hearing on November 5, 2001.
Vice-Chairman Greer asked if the reclassification of Futch Creek would involve the entire
watershed and if the results would lead to changes in drainage regulations and other environmental
concerns.
Assistant County Manager Dave Weaver responded that changing the reclassification will only
impact areas within 575 feet of the Futch Creek shoreline, which may or may not include the entire
watershed.
Commissioner Caster stated as a member of the Tidal Creeks Management Advisory Board,
he would be glad to discuss any issues of concern with the Advisory Board at the next meeting
scheduled for October 5, 2001. He requested the members of the Board to contact him if they have
an issue of concern.
ADOPTION OF RESOLUTION APPROVING THE SALE OF NEW HANOVER COUNTY
CERTIFICATES OF PARTICIPATION, SERIES 2001, TO FINANCE CONSTRUCTION,
RENOVATION AND EQUIPPING OF THE JAIL, LAW ENFORCEMENT, PARKING AND
LIBRARY FACILITIES
County Attorney Copley requested the Board to consider and take action on a resolution that
approves the form of the documents to be entered into in connection with the Sale of Certificates of
Participation, Series 2001, the proceeds of which will be used to finance the construction, renovation
and equipping of jail, law enforcement, parking and library facilities as described in the Notice of the
Public Hearing that was published on September 6, 2001 in the Wilmington Morning Star.
County Attorney Copley read the following resolution into the record:
RESOLUTION APPROVING AN INSTALLMENT FINANCING OF JAIL,
LAW ENFORCEMENT, PARKING AND LIBRARY FACILITIES AND THE
SALE OF NOT MORE THAN $61,500,000 CERTIFICATES OF
PARTICIPATION, SERIES 2001 AND AUTHORIZING THE EXECUTION
AND DELIVERY OF DOCUMENTS IN CONNECTION THEREWITH
WHEREAS
, the following draft document forms are available at this meeting:
1.Installment Financing Contract between New Hanover County and the New Hanover County
Financing Corporation;
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 805
2. Deed of Trust and Security Agreement from the County to a Trustee;
3. Indenture of Trust between the Corporation and First-Citizens Bank & Trust, as Trustee;
4. Preliminary Official Statement relating to the Certificates of Participation, Series 2001;
5. Contract of Purchase between Scott & Stringfellow, trading as BB&T Capital Markets, Banc
of America Securities LLC and Morgan Keegan & Company, Inc. (the Underwriters) and
the Corporation; and
6. Letter of Representation from the County to the Underwriters.
WHEREAS,
the Board of Commissioners of the County conducted a Public Hearing on September
17, 2001, regarding the Contract to finance the facilities; and
WHEREAS,
the Board of Commissioners of the County desires to approve the sale of the
Certificates and to authorize other actions in connection therewith;
NOW, THEREFORE, BE IT RESOLVED
by the Board of Commissioners of the County as
follows:
1. All actions heretofore taken by the County Manager and the Finance Director, effectuating
the proposed installment financing of the Facilities are hereby approved, ratified and
authorized.
2. The Contract, Deed of Trust, and Letter of Representation are hereby approved, and the
Chairman or Vice-Chairman of the Board, the County Manager, the Finance Director and the
Clerk to the Board are each hereby authorized and directed to execute and deliver each of
those documents on behalf of the County.
3. The Indenture and the Purchase Contract are hereby approved, including provisions that
relate to a municipal bond issuance policy procured by the County.
4. The Preliminary Official Statement and the final Official Statement in the form of the
Preliminary Official Statement are approved and the use thereof in connection with the public
offering and sale of the Certificates is hereby authorized. The Chairman or Vice-Chairman
of the Board and the County Manager and Finance Director are hereby authorized and
directed to execute and deliver on behalf of the County, the final Official Statement.
5. Subject to the limitations set forth herein, the County Manager is hereby authorized to
approve the terms of the Certificates providing that:
(i) the principal amount of the Certificates shall not exceed $61,500,000;
(ii) the final maturity date of the Certificates shall be no later than December 1, 2022;
(iii) the true interest cost and the effective interest rate thereof shall not exceed 5.25% and
5.30%, respectively.
6.The Chairman or Vice-Chairman of the Board, the County Manager, the Finance Director,
the Clerk to the Board, and the County Attorney are hereby authorized to take any and all
such further action and to execute and deliver such other documents as may be necessary or
advisable or carry out the intent of this Resolution and to effect the installment financing
pursuant to the Contract, including, without limitation, procuring a municipal bond insurance
policy and entering into tax compliance agreements.
Chairman Davis called for a motion to adopt the resolution.
Motion:
Vice-Chairman Greer MOVED, SECONDED by Commissioner Pritchett, to adopt the final
resolution for the sale of Certificates of Participation not to exceed $61,500,000 to finance
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 806
construction, renovation, and equipping of the Jail, Law Enforcement, Parking and Library facilities
and authorize the Chairman to execute the necessary documents. The bond resolution is to become
effective upon adoption.
Chairman Davis advised that he had voted against the site selected for the jail, the hiring of
a project expediter, and renovation of the downtown Library, which are projects included in the
financing; however, since there is a need for the resolution to receive a unanimous vote to receive a
better interest rate on the money being borrowed by the County, he would vote in favor of the
resolution.
Commissioner Boseman stated that she was opposed to the jail project, but would vote in
favor of the resolution to receive a better interest rate.
Finance Director Bruce Shell expressed appreciation for the comments regarding the need to
support the resolution and stated when the Board shows solidarity, the persons bidding are aware of
this fact and in turn the County receives a lower interest rate.
Commissioner Caster requested an explanation of Section 5(iii) regarding the interest rate not
exceeding 5.25% and 5.30%.
Finance Director Bruce Shell explained that the first percentage number refers to the true
interest cost, and the second percentage number refers to the effective interest cost. The financing
industry usually refers to true interest cost, and the Local Government Commission requires the
effective interest cost; therefore, the County satisfies both agencies in the disclosure. True interest
is the interest paid on the par amount of bonds plus accrued interest less the underwriters’ discount,
less the original issue discount, plus any bond premium that may be required. The County has a cap
of 5.25%, but it is felt that a rate under 5% will be received. Effective interest is the true interest rate
but it includes the reduction of any additional cost for issuance of the bonds. This rate is capped at
5.30%, but it is not expected to exceed 5%.
Commissioner Caster expressed appreciation to Finance Director Shell for the explanation.
MOTION
Chairman Davis called for a vote on the to adopt the resolution. 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 8.
County Manager O’Neal advised that he was proud to announce that New Hanover County
has received the following ratings on the Certificates of Participation (COPS) issue, which is an
indication of a strong and stable financial position:
Rating AgenciesGeneral Obligation BondsCOPS
Standard and Poors AA- A+
Moody’s Rating Service Aa2 Aa3
Fitch IBCA AA- (implied) A+
Chairman Davis, on behalf of the Board, complimented Staff for the excellent bond ratings.
MEETING RECESSED TO HOLD A REGULAR MEETING OF THE NEW HANOVER
COUNTY WATER AND SEWER DISTRICT
Chairman Davis convened from Regular Session at 5:44 P.M. to hold a meeting of the New
Hanover County Water and Sewer District.
Chairman Davis reconvened to Regular Session at 6:01 P.M.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 807
NON-AGENDA ITEMS
Chairman Davis announced that time has been reserved to allow anyone from 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.
The following item was presented:
Mr. Mark Cope, Vice-President of King’s Grant Concerned Citizens, Inc., read into the
record the following letter received from the N. C. Department of Justice, P. O. Box 629, Raleigh
North Carolina, to the Attention of Ms. Betty Scott, President of King’s Grant Concerned Citizens,
Inc., P. O. Box 12515, Wilmington, N. C.
Dear Ms. Scott:
Thank you for sending the Attorney General Roy Cooper a copy of the materials concerning
your Association’s efforts to obtain the extension of sewer services by New Hanover County.
Your complaint and materials were referred to the Consumer Protection Division review.
The Consumer Protection Division investigates unfair business practices for potential
enforcement action. The Attorney General is authorized to take action on behalf of the State
of North Carolina to protect citizens from such business practices.
Thank you again contacting the Attorney General’s Office. I am enclosing the materials
you sent.
Yours truly,
Leonard G. Green
Assistant Attorney General
Chairman Davis requested Mr. Cope to present the form to the Clerk to the Board. The
document was marked as an exhibit and placed on file in the Governing Body Office.
ADDITIONAL ITEMS
Adoption of Resolution to Urge the Community to Reject Biases Against People of Other
Cultures as a Result of the Attack on America by Terrorists
Commissioner Pritchett read a resolution urging the community to reject biases against people
of other cultures, especially those of Arab decent and those who hold the Islamic faith, and to treat
people of all religious beliefs and all ethnicities with respect.
Chairman Davis called for a motion to adopt the resolution.
Motion:
Commissioner Pritchett, MOVED, SECONDED by Vice-Chairman Greer, to adopt the
resolution . 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 8.
Discussion of Attendance at the CAMA Land Use Planning Meeting
Commissioner Caster referenced the CAMA Land Use Planning meeting being held on
October 2, 2001 in Craven County and asked if any members of the Board or Staff were planning to
attend the meeting.
Vice-Chairman Greer noted that a letter had been received from the N. C. Association of
County Commissioners requesting each County to oppose Article VII under the proposed CAMA
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 808
changes and stated that a member of Staff should attend to support the stance of the Association.
County Manager O’Neal advised that since no Commissioners could attend the meeting, a
member of Staff would attend and express opposition to Article VII.
Discussion of the Traffic Accidents Occurring in the City of Wilmington and New Hanover
County
Commissioner Boseman requested the Board to invite City Transportation Planner Bill Austin
to make a presentation to the Board about adopting a traffic policy similar to the one adopted by the
Transportation Advisory Committee and the City of Wilmington.
After commenting on the number of accidents occurring in the community, she requested
County Manager O’Neal to place this item on the agenda.
County Manager O’Neal advised that he would contact Mr. Austin and request him to make
a presentation on November 5, 2001.
Discussion of Ordinance Regulating Dogs at the North End of Wrightsville Beach
Commissioner Boseman requested an explanation of how dogs will be controlled at the north
end of Wrightsville Beach and stated that she had received complaints from persons opposed to
prohibiting dogs on this end of the beach.
Assistant County Manager Dave Weaver responded that he would be meeting with the
Wrightsville Beach Town Manager to request the Board of Aldermen to extend the Town’s ordinance
to cover the north end of the beach up to Mason Inlet. Once the meeting is held, a report on the
details of the ordinance will be forwarded to the Board.
Work Session Scheduled with New Hanover Regional Medical Center Hospital Administrators
and Bond Counsel Representatives to Discuss “Interest Rate Swap Agreements”
Commissioner Caster requested the Board to schedule a Work Session with administrators
of the Medical Center and representatives of Salomon Smith Barney to discuss Interest Rate Swap
Agreements which are complex financial arrangements known as: (1) a Fixed to Floating Rate Swap;
and (2) a “Basis Swap”. He advised that the Medical Center Board of Trustees had approved the
concept subject to approval by the Board of County Commissioners, and he felt that a Work Session
should be held for the Commissioners to understand this type of financing before rendering a decision.
Consensus:
After discussion of dates, it was the consensus of the Board to schedule a Work Session
with Medical Center Administrators and representatives of Bond Counsel on Monday, October 8,
2001, at 5:00 P.M. in Room 501 of the County Administration Building, 320 Chestnut Street,
Wilmington, North Carolina to discuss these types of financial agreements.
Appointment of Commissioner Julia Boseman and Commissioner Nancy H. Pritchett to Attend
FEMA Domestic Terrorism Planning and Training Programs
Chairman Davis requested the Board to decide on two Commissioners to attend the FEMA
Domestic Terrorism Planning and Training Programs to be held on January 28 - February 1, 2002,
in Mount Weather, Virginia.
Vice-Chairman Greer stated that he would like to attend.
Commissioner Pritchett commented on discussing this issue with Emergency Management
Director Dan Summers and stated he informed her that most of the training would be similar to
hurricane training programs; therefore, she would suggest for the two new members of the Board to
attend the conference.
Consensus:
It was the consensus of the Board to appoint Commissioner Boseman and Commissioner
Pritchett to attend the FEMA training programs.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 809
County Manager O’Neal noted that since more than two Commissioners would like to attend
the training programs, he would check with Director Summers to see if another Commissioner could
replace a participant who may decide not to attend.
Reminder of Work Sessions
Chairman Davis reminded the Board of the following meetings:
October 11, 2001 - 5:00 P.M. - Assembly Room, Courthouse
Presentation by NCDOT on Smith Creek Parkway Project
October 15, 2001 - 1:00 P.M. - Assembly Room, Courthouse
Consolidation Work Session
October 15, 2001 - 300 P.M. - Assembly Room, Courthouse
Presentation from engineering firms on water treatment plant and
a plan to supply water to Figure Eight Island and Bald Eagle Lane
Consideration of 2002 Schedule of Regular Meetings and Staff Meetings of the Board of
County Commissioners
Chairman Davis noted that a draft copy of the 2002 Schedule of Regular Meetings and Staff
Meetings of the Board has been presented by Clerk to the Board, Lucie F. Harrell. He advised that
the Staff Meeting scheduled for July 4, 2002 had been changed to Wednesday, July 3, 2002. He also
pointed out that the first Monday in November falls on November 4, 2002, the day before the
November 5 election. He asked if the Board would like to change the meeting dates in the month
of November to Tuesday, November 12 and Monday, November 25, 2002.
Consensus:
It was the consensus of the Board for the Clerk to the Board to change the draft
schedule as follows:
Staff Meeting, November 7, 2002
Regular Meeting, November 12, 2002
Staff Meeting, November 21, 2002
Regular Meeting, November 25, 2002
Reminder of Date for Group Picture
Chairman Davis reminded the Board that the group picture would be taken on Monday,
October 15, 2002, at 8:00 A.M. in the Assembly Room before the 9:00 A.M. meeting.
Discussion of Resolution Adopted by Union County Regarding District Representation
Chairman Davis advised that a resolution had been received from Union County requesting
the N. C. General Assembly to consider a single member Senatorial and House District to represent
all citizens instead of multi-split districts.
After discussion of the maps already being drawn, the Board decided it was too late to adopt
a resolution. Each Commissioner was requested to call the local legislators and express concern for
the manner in which districts have been split in the past.
PUBLIC HEARING TO CONSIDER A PETITION FILED BY OCEAN FOREST LAKES
RESIDENTS TO APPEAL A DECISION BY THE PLANNING BOARD’S TECHNICAL
REVIEW COMMITTEE PERMITTING A 427 UNIT CONDOMINIUM COMPLEX TO BE
LOCATED IN THE 7800 BLOCK OF RIVER ROAD AND VETERANS DRIVE (SA-17,
10/01)
Chairman Davis spoke on this appeal being a controversial issue and he requested all persons
speaking to treat each other with respect and dignity during the hearing. He advised that the Planning
Board is an Advisory Board to the Board of County Commissioners, and the Technical Review
Committee is a committee of the Planning Board which also makes it an advisory board to
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 810
the Board of County Commissioners. Since this is an administrative action, not a quasi-judicial action
where the County Commissioners sit as a judicial board, no sworn testimony is required. If an appeal
is made to the decision rendered by the Board of County Commissioners at this administrative
hearing, a new hearing will have to be held in front of a Superior Court Judge. Since this is the
second time that an appeal has been made to a decision rendered by the Technical Review Committee,
the time limits will be expanded as follows:
Staff Presentation10 minutes
Appellants20 minutes with 5 minutes for rebuttal
Petitioner20 minutes with 5 minutes for rebuttal
Board of Education10 minutes
Chairman Davis stressed the importance of all persons attending the meeting to understand
that only two issues can be considered by the Board of County Commissioners in rendering a
decision:
1. Did the Technical Review Committee err in finding that the appellant’s project, which
provides for construction of a 427-condominium complex using a total of 201.2 acres to
satisfy the density requirements, met the terms of the subdivision regulations?
2. Did the Technical Review Committee err by retracting the requirement that the appellant
bring the first 1,000 feet of Veterans Drive up to NCDOT standards?
Chairman Davis asked if any member of the Board felt there were other issues relevant to the
hearing based upon the appeals received.
Commissioner Caster requested clarification of Item 2 and asked if the Technical Review
Committee required the petitioner to bring the road up to NCDOT standards without any
modifications to the stormwater drainage system.
County Attorney Copley responded that when evidence was received from the NCDOT
regarding the stormwater drainage system, the Technical Review Committee changed the finding and
required only the first 1,000 feet of Veterans Drive be brought up to NCDOT standards. The
Technical Review Committee felt that since the drainage system was already installed underneath the
road, it would be cost prohibitive for the developer to replace or modify the system.
Chairman Davis spoke on the number of calls and letters received from persons concerned
about increased traffic in this area if the petitioner is allowed to construct 427 units, and he requested
County Attorney Copley to explain why traffic cannot be considered as an issue in the appeal process.
County Attorney Copley explained that the Planning Staff reviews all issues related to a
development project before forwarding the plan to the Technical Review Committee for approval.
Traffic was not an issue that was sent to the Technical Review Committee for consideration. The two
issues presented by Chairman Davis were the only items reviewed by the Technical Review
Committee; therefore, these are the only issues that can be considered by the Board of County
Commissioners.
Chairman Davis also noted that comments have been made by both sides on whether the
Board of County Commissioners should hear the appeal. He emphasized the importance of the
attorneys and petitioner understanding that any decision rendered by the Board of County
Commissioners can be appealed to Superior Court. He requested the following letters from the
attorneys to be submitted to the Clerk to the Board for entry into the record:
•Letter dated September 24, 2001, from Gary K. Shipman, the attorney representing the
petitioner.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 811
•Letter dated October 1, 2001, from Attorney Jeffrey P. Keeter, the attorney representing
surrounding neighborhoods.
•Letter dated October 1, 2001, from Wayne A. Bullard, the attorney representing the New
Hanover County Board of Education.
Chairman Davis also requested the petition dated September 28, 2001 from surrounding
residents to be entered into the record.
The letters (marked Exhibit I) and the petition (marked Exhibit II) are hereby incorporated
as a part of the minutes and are contained in Exhibit Book XXVII, Page 9.
Chairman Davis opened the Public Hearing and requested Planning Director Dexter Hayes
to make his presentation.
Planning Director Hayes presented a map of the site and noted that on August 22, 2001, the
Planning Board’s Technical Review Committee (TRC) voted 5 to 2 to approve a 427 unit
condominium complex known as the Veterans Park Condominium project. He advised that the
preliminary approval of the site plan by the TRC encompasses approximately 201.2 acres of
undeveloped property (shown as green on the map) located in different locations on both sides of
River Road with the condo project in the middle of the site. Most of the property is owned by
SANCO of Wilmington. The 201.2 acres consist of either Class IV soils, which are predominantly
wet most of the year, or Federal 404 wetlands that may be regulated by the New Hanover County
Conservation Overlay District. Several of the parcels of land are not adjacent to the Veterans Park
condo site, but are located nearby as indicated on the map. Approximately 42.89 acres are displayed
on the detailed plan where the 427 unit condominium complex will be located.
At the time of preliminary approval, the TRC placed four (4) conditions on approval of the
Veterans Park condominium complex:
1.The intersection of River Road and Veterans Drive as well as driveway entrances be
improved to NCDOT minimum standards.
2.No vehicular connection will be established through the project into the Lambs Bluff
development. A 30-foot pedestrian access easement and bike path will be required
as well as an emergency gate to the development. The access easement will be built
and connected to the Veterans Park facilities. The gate for emergency vehicles will
be under the control of the Lambs Bluff neighborhood and connected to the condos.
3. Street Yard Landscaping Standards will be required in accordance with the 25-foot
Factor of Section 67-10 of the Zoning Code.
4. The developer will make all improvements for acceptance and maintenance by
NCDOT for the first 1,000 feet of Veterans Drive extending from River Road.
On September 6, 2001, the developer of the condo project requested the Planning Board’s
TRC to reconsider Condition 1 and Condition 4. In discussing and clarifying both conditions, the
TRC agreed that Veterans Drive should be built to minimum NCDOT requirements and that a
driveway permit should be required at the entrance to the project at River Road. The TRC also felt
that since improvements were already installed by the County underneath the road, the developer
should not be held responsible for replacing or modifying the stormwater system in order to satisfy
NCDOT maintenance requirements.
The TRC also recommended that the NCDOT inspect the road and provide a list of
improvements needed to satisfy minimum NCDOT requirements for maintenance with submission of
the findings to the County Engineering Staff. The TRC voted 4 to 2 to approve the modified
conditions. As a matter of information, the Planning Department just received a short list of road
improvements from the NCDOT.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 812
The residents from Ocean Forest Lakes and other nearby neighborhoods along with the
School System and the County Parks Department have expressed a variety of concerns during the
review of the Veterans Park project on August 22, 2001. Concerns included: (1) the density of the
project; (2) lack of contiguous open space; (3) traffic and safety impacts near the school; (4) well
water supply and sewer capacity; (5) the designation of Veterans Drive as a collector road from River
Road to Carolina Beach Road; and (6) the enormity of the project in an established single family
residential area isolated from primary goods and services.
According to the County Attorney’s Office, the Zoning Ordinance is not specific on the issue
of open space having a proximal relationship for performance related projects. Without a specific
standard such as a radius, distance or other reliable quantitative method, the TRC has the discretion
to make a determination on the contiguous issue. In order to make the project more defensible and
a little less intrusive to nearby residents, Staff recommends that the peripheral open space designated
for the project be removed, thereby creating approximately 85 acres and approximately 213 units.
Staff believes that any project of this size should have alternative access/connectivity to nearby
neighborhoods and major arteries. Alternative access provides economy and efficiency by ensuring
prompt emergency service delivery and disbursement of traffic as well as allowing nearby
neighborhoods better transportation choices to goods and services in the area.
Chairman Davis requested Mr. Jeffrey P. Keeter, the attorney representing surrounding
neighborhoods to make his presentation.
Attorney Jeffrey P. Keeter, representing property owners adjoining the Veterans Park
Condominium project and other concerned citizens throughout the County, reported that New
Hanover County adopted a Zoning Ordinance in October 1969 to regulate the use and development
of property within the county. One district designated in the Zoning Ordinance was R-15 Residential.
The Veterans Park Condominium project is located in the R-15 Residential zone, and there is a
performance residential use permitted in this zone with lots restricted to 15,000 square feet for
single-family units. The Zoning Ordinance also permits clustering of units, single-family units, or
multi-family units under the performance residential use that allows 2.5 units per acre of development.
The Veterans Park Condominium project consists of 42.89 acres. Under the performance residential
criteria, there is an opportunity for developers to dedicate open space that is contiguous to developed
property to increase the density for development on the property.
One issue before the Board of County Commissioners is contiguity in dealing with access to
the open space that is being dedicated or used for increased density. Under Section 69.1 Subsection
2, Access to Open Space, it reads as follows:
All lots or units created within the development shall have direct access to all open space and
recreational facilities as provided or dedicated walkways or by the fact of physical contiguity
through other public land or lands in common ownership of all residents.
The major issue is whether or not the areas tendered for the transfer of density to increase the
number of units to be built on the 49.2 units have direct access or are contiguous. The Zoning
Ordinance does not specifically define contiguity or direct access. The Miriam Webster’s Collegiate
Dictionary defines contiguity as “the quality or state of being contiguous”. The word, contiguous,
is defined as “being in actual contact , touching along a boundary or at a point.” A direct route means
“proceeding from one point to another in time or space without deviation or interruption and
proceeding by the shortest way.”
The request before the Board is an attempt to use property that is severely limited for
development purposes or is undevelopable in its current state, but is being used to increase the density
for the Veterans Parks Condominium project. The properties being presented do not meet the
definition of contiguity because the parcels do not touch along adjoining boundaries. For example,
one parcel is 4,633 feet away from the developed property, and another parcel is 3,847 feet from the
developed property. The areas across River Road from the developed tract are inaccessible because
the property consists of wetlands and rattle snake brush with no walkways. Under the
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Zoning Ordinance, the open space areas are required to be placed into a homeowners association
because these areas are intended to provide open areas for persons living in the clustered units. It is
difficult to believe that an inaccessible open space located 4,633 feet away can comply to the spirit
of the Zoning Ordinance or comply to the definition of contiguity. If the Zoning Ordinance is
interpreted in this manner, a developer could purchase a spoil island in the Cape Fear River one-half
mile away to be used to increase density on the mainland. This example would not be the proper
application of the Zoning Ordinance, nor is the effort being made by SANCO to bring in acreage one-
half mile away in keeping with the Zoning Ordinance.
With regard to requiring the first 1,000 feet of Veterans Park Road to be brought up to
NCDOT standards, it is felt that these improvements should be made. Under enabling legislation
enacted by the N. C. General Assembly in 1935, counties were required to turn over improved road
systems to the State of North Carolina for maintenance and on-going development. Counties can
maintain access ways for use to its properties, such as parks and schools. When a roadway owned
by New Hanover County is used as a public road, it falls within the realm of the legislation and must
be brought up to NCDOT standards and turned over to the State for maintenance.
In concluding his remarks, Attorney Keeter agreed with the appeal being limited to the two
issues presented by Chairman Davis and stated, however, subdivision regulations of the Zoning
Ordinance should adhere to the same standards promulgated by the N. C. General Assembly when
conveying and enabling counties to adopt zoning ordinances. When adopting, amending, and applying
Zoning Ordinances, the Board should always consider what is in the best interest of the safety, health,
and general welfare of the community as well as orderly growth of the County.
Ms. Patricia Seaman, a resident of Lambs Bluff, quoted from an article in the Real Estate
Section of the Star News published on August 19, 2000, describing her neighborhood:
Hills? Rolling landscape? Can this be the natural topography of Lambs Bluff?” You bet it
is, and oh, the pleasant surprises of this and more that await home buyers when they turn into
Lambs Bluff off River Road.
Ms. Seaman presented pictures of homes in Lambs Bluff and Ocean Forest Lakes showing
how these communities will be affected by the Veterans Park Condominium project that will start less
than 100 feet from existing homes. Three-story apartment buildings, some with 30 units each, will
be towering over the back and front yards of these homes. The term “apartment” is used because Mr.
Nathan Sanders told approximately six homeowners from Lambs Bluff after the August 22, 2001
TRC meeting, that the term condo is used as a deeding mechanism. He also stated that the condo
complex would be owned by one person with the units being rented. No residents of Lambs Bluff
or Ocean Forest Lakes purchased their homes expecting to see 22 apartment buildings and the
accompanying traffic.
The residents have been told that public safety was not an issue affecting the decision rendered
by the TRC; however, this project will negatively impact real people, families, and neighborhoods,
including 100 children under the age of 17 living in Lambs Bluff. The TRC should have considered
traffic patterns and attempted to alleviate future problems especially when the American Automobile
Association has just given New Hanover County the dubious honor of being one of the most
dangerous counties to drive in for the second year in a row as reported September 28, 2001.
It was stated in the Star News on September 30, 2001 that the Veterans Park Condominium
project is set in stone because it does not involve a zoning change; however, the fact that 19.88 acres
fall on the flood plain means that this project is under the jurisdiction of the Flood Plain Management
regulations of New Hanover County. It is a travesty that this 18-page document has been ignored
because it states in Article V, Section 2 that “any ordinance or part of any ordinance in conflict with
this ordinance to extent of such conflict is hereby repealed.” This means that in the case of a conflict,
this ordinance takes precedent. Under Section 3, the ordinance states that “this ordinance is adopted
in the interest of the public health, safety, and general welfare of the inhabitants of the County of New
Hanover, North Carolina and shall be enforced in effect from and after its
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adoption in April 1978 and amended thereafter.” Article III, Section 2(C) states that “duties of the
building inspector and/or county engineer shall include that he notify adjacent communities and the
N. C. Department of Natural Resources and Community Development as to any alteration or
relocation of a water course so the flood carrying capacity is not diminished.”
No residents of Lambs Bluff , Ocean Forest Lakes or other adjacent communities were
notified of the Veterans Parks Condominium project. When Mr. Sanders purchased the land, he
changed the topography when removing an average depth of 10 to 15 feet of topsoil from a 4.9 acre
area without a true plan of development to necessitate the soil being removed. Not only were the
local residents not notified, but the federal government was not notified. This is important because
New Hanover County is a Project Impact Community through FEMA and this jeopardizes the
County’s ability to participate in the National Flood Insurance Program.
Not only was Section C not followed, but Mr. Sanders was issued numerous citations from
the Zoning Board of Adjustment to stop mining in the area, and he did not comply to the request.
Mr. Sanders owes New Hanover County $12,900 in outstanding fines and citations which are on
appeal. Mr. Sanders changed the topography of this area for a new development known as the
Veterans Park Condominiums. This site has been engineered using the same topographical
information from 1973. In summary, no new map has been drawn since the mining; therefore, the
topography for this development is invalid. Since the topography has been changed altering the water
course, why has FEMA not been notified. After discussing this matter with a representative of
FEMA, there was no record of Mr. Sanders applying for a map revision. The FEMA representative
also noted that since the water course has been changed, Mr. Sanders needs to send a report to
FEMA to show the impact of the change on flooding in the area. This information should have been
submitted to the Planning Department for review of the plan by the TRC and Planning Board. Since
Mr. Sanders is placing a retention pond in the flood plain, FEMA should see the plan since there are
various criteria that must be met when altering a water course that has created a new flood hazard
area. By not complying to the FEMA rules, New Hanover County could lose its ability to participate
in the National Insurance Flood Program. On Page 6 of the handbook entitled, Answers to Questions
About the National Insurance Flood Insurance Program, it states:
Communities are required to adopt and enforce a Flood Plain Management Ordinance that
meets minimum NFIP requirements. Communities that do not enforce these ordinances can
be placed on probation or suspended from the program.
If Mr. Sanders does not want to follow the Flood Plain Management Ordinance of New
Hanover County, which supercedes all other ordinances, Mr. Sanders needs to apply for a variance
as per Article III, Section 4 of the Flood Plain Management Ordinance. There is no evidence that
Mr. Sanders has applied for a variance from the Zoning Board of Adjustment to build in the flood
plain.
In concluding her presentation, Ms. Seaman referred to a statement made by Mr. Gary
Shipman in the Star News on September 30, 2001 saying that “the merits of this project are beside
the point. The question is do the rules allow it.” The residents of adjacent neighborhoods would
answer Mr. Shipman by saying no. Appreciation was expressed to the Board of County
Commissioners for hearing the appeal.
Chairman Davis requested Mr. Gary Shipman, the attorney representing Mr. Nathan Sanders,
to make his presentation.
Attorney Gary Shipman, representing the appellant Nathan Sanders, reported that the primary
consideration should be whether the rule of the law will prevail in rendering a decision on the appeal,
or whether in the guise of subdivision approval, the rules will be changed. Each Commissioner is
familiar with the law in this case and understands that when issuing a subdivision approval, the Board
is required to be governed by the literal provisions of the Zoning Ordinance. The Board is not
entitled to inject subjective determinations as to whether this is a good idea or whether this is an
aesthetically pleasing project. The Board is required to be guided by the objective standards of the
Zoning Ordinance. If the applicant meets all requirements of the project as proposed, the Board is
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
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required to uphold approval of the project as recommended by the TRC.
County Planner Sam Burgess has been asked three times (after the TRC meeting on August
22, 2001, today, and tonight) if the project as submitted with 427 units meets the technical
requirements of the Zoning Ordinance. A positive response was received from Planner Burgess each
time the question was asked. In order to determine if the Veterans Park Condominium project meets
the technical requirements, the following issues must be addressed: (1) does the open space submitted
in the proposed plan meet the open space requirements of the Zoning Ordinance; and (2) is the
density submitted by the applicant permitted. The road issue is a non-issue because Mr. Sanders had
agreed to build the road in accordance with NCDOT standards.
Attorney Shipman noted that Planning Director Hayes has informed the Board of County
Commissioners about the issue of contiguity by quoting: “We are without reliable standards for
determining contiguity.” After commenting on being amazed by the dictionary definitions read by
Mr. Keeter, Attorney Shipman read the following definitions on the meaning of contiguity: (1) “near
or next to” taken from Random House Dictionary; and (2) “in close proximity without actually
touching” taken from the American College Dictionary. One way for the Commissioners to
determine the meaning of contiguity as an administrative body, is to consider how Staff has
determined what constitutes contiguous property for open space in other projects.
Attorney Shipman requested Mr. Sanders to present two subdivision plats that were approved
by the Planning Staff with open space shown as part of the subdivisions. Attorney Shipman informed
the Commissioners that these plats will show how the Planning Staff determined what properties were
contiguous in both projects.
Plat I - Coastal Carolina Land Development: This plat was submitted and approved in
February 1998 for the construction of 200 units in the northern part of the County. The areas
outlined in yellow are the areas that were submitted as open space and approved as being
contiguous, near, or in close proximity to where the units will be constructed.
Plat II - Jacobs Ridge: This plat was submitted and approved in October 1999 for single-
family residential development in the northern part of the County in West Bay Estates. The
plan includes a tract of approximately 8.59 acres of land as open space that does not touch,
but is in close proximity with or near the development as proposed.
Attorney Shipman informed the Commissioners that the open space in the two plats presented
was considered by the Planning Staff as being sufficiently contiguous to meet the requirements of the
Zoning Ordinance; therefore, it is felt that the interpretation of the TRC’s decision as to what
constituted contiguous property for approval of the Veterans Park Condominium project is consistent
with projects approved by the Planning Staff in the past. When submitting the Veterans Park
Condominium project for approval as a performance residential subdivision, there is no requirement
that any open space had to be set aside. The developer, Mr. Sanders, could have platted the open
space areas as lots and still clustered the proposed units to be constructed in the same area. This
action would have prevented the public and owners of the units from enjoying the open spaces
proposed in the plan. The developer did not take this course of action, but he set aside open space
areas that will not be developed and plans to construct the units as submitted in the plan which will
benefit the County. The policy of the Planning Staff for the past 18 years has been to encourage
developers to cluster units as opposed to constructing on every square inch of the property.
Attorney Shipman advised that contiguity was one factor in determining if the plan submitted
by the petitioner meets the requirements in the Zoning Ordinance. The other issue is having access
by means of public streets and dedicated walkways. When approving a subdivision, it is typical for
the developer to be required to meet technical requirements for providing access to open spaces as
a condition of the approval process, or at the time the final plat is submitted by the developer. It is
a technical issue for the developer to re-draw the map to provide the access needed because all areas
shown on the map are within the control of the developer or are actually owned by the developer.
The Board of Commissioners can make it a condition of the subdivision approval if the members
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do not feel there is sufficient access.
Attorney Shipman informed the Board that the request is not a rezoning or a legislative
determination. The Zoning Ordinance does not contain a specific provision as to how the density
requirements should be satisfied, and there is no specific definition of contiguity; therefore, any
ambiguity in the Zoning Ordinance must be read in favor of the landowner as long as the technical
requirements are met. The Veterans Parks Condominium project has met the technical requirements.
Attorney Shipman stated that the issue pertaining to limiting the development to 213 units
instead of 427 units is a discretionary determination by the Board of County Commissioners. The
issue should be determined on whether the project as proposed meets all of the technical
requirements. The appellants have contended that the technical issues have not been met, but the
information submitted is not sufficient for the Commissioners to deprive the property owner and/or
developer of what the courts of North Carolina say the developer is legally entitled to receive. In this
case, the developer is legally entitled to the development as submitted. This is not an issue where a
compromise can be forced. The Commissioners can approve the subdivision as submitted with the
standard conditions imposed by the TRC. The Commissioners cannot impose the will of some people
that would reduce the size of the project unless there are standards in the Zoning Ordinance allowing
this action. There are no such standards in the Zoning Ordinance.
In closing his presentation, Attorney Shipman expressed appreciation to the members of the
Board for their attention and stated it was unusual for the Board of County Commissioners to be in
the position of micro-managing the subdivision process. When rendering a decision, the i’s must be
dotted and t’s crossed. In this case, all of the requirements have been met and the Commissioners
are duty bound to approve the subdivision as submitted. If the Board believes that sufficient access
has not been provided to the open space areas, the developer can be required to provide the access.
Contiguity is one issue with access being the other issue.
Chairman Davis requested Mr. Wayne Bullard, the attorney representing the Board of
Education, to make his presentation.
Attorney Bullard expressed appreciation to the Board of County Commissioners for being
allowed to speak on behalf of the New Hanover County Board of Education. He announced that Mr.
Ed Higgins, Chairman of the Board of Education; Board Member Steve Bilzi; Board Member
Maryann Nunnally; Superintendent of Schools John Morris, Jr.; and Assistant Superintendent of
Facility Planning Bill Hance were present to support the School System’s opposition to the project
as presented.
Attorney Bullard advised that the Board of Education was opposed to the project as
submitted because of concern for student safety which involves the traffic issue. He asked if the
Commissioners were opposed to hearing his comments about this issue.
Chairman Davis informed Attorney Bullard that he had eight minutes to argue the position
of the Board of Education.
Attorney Bullard reported that under an interlocal agreement with New Hanover County, the
Board of Education leases school campuses from the County for Murray Middle School and Ashley
High School. When the bonds are paid in full for purchase of the property, the school campuses and
facilities will be deeded to the Board of Education in fee simple and the property in question is near
school property. The primary concern of the School System is for student safety. Currently there
are 100 students who live within one and one-half miles of the two schools and walk down Veterans
Drive to attend school because buses do not pick up students within this short distance from school
facilities. There is a plan for an elementary school to be constructed on the site and when this
structure is built, there will be additional young children walking to school. Veterans Drive was never
intended to be a thoroughfare as noted in the following quote by Mr. Neal Lewis, Parks Director of
New Hanover County:
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Veterans Drive was designed to handle local traffic to and from the schools and park. It was
intentionally designed to discourage through traffic from River Road to Carolina Beach Road
by the general public. This is evidenced by the meandering nature of the road, the number of
drive cuts to the schools and park, the addition of speed humps, and the addition of gates at
each end of the park. If a cut-through road is needed in this area, it should be the
responsibility of the developers in the area and should not be part of the County’s planning
efforts. The County spent a lot of money buying this acreage and building an adequate road
to meet the County’s needs.
Attorney Bullard noted that the Board of Education has agreed with the statements by Mr.
Lewis. He also informed the Board that Planning Director Dexter Hayes has estimated that 854
additional cars will use Veterans Drive as a result of the proposed 427 units, which equates to 3,000
additional trips per day. With school buses, students walking to school, and parents picking up their
children, this will create a dangerous situation. If the Board of Education had been aware of the
proposed density project at the time the site was configured, the schools would have been built
differently on the site with an access road to better control traffic.
Attorney Bullard stated that he felt a bad precedent would be set if the Board interprets the
Zoning Ordinance as requested by the developer. This is a question of interpreting the requirements
for contiguous property. If this issue is not clearly defined in the Zoning Ordinance, the Board of
County Commissioners should specifically define contiguous property so the standard can be applied
in every case. With reference to Mr. Shipman’s comments on approval of two non-contiguous
projects by the Planning Board’s TRC, the following information was received from Assistant County
Attorney Holt Moore:
I have conferred with Dexter Hayes, and to the best of his knowledge, there has not been a
project of exactly this sort, using acreage for density requirements in this manner. The files
in the Planning Department are public records, and you are welcome to verify this
information. Therefore, I think there is little value in the precedent of the past because this
type of scenario has not been previously considered by the County. I understand there have
been projects approved using acreage across the street from the structure(s). That precedent
would seem to weigh in favor of the present project, but is distinguishable because it is closer
than some of the acreage included in the present project.
Attorney Bullard requested the Board of County Commissioners to reverse the decision of
the TRC and remand the request back to the Planning Board and follow the recommendation of the
Planning Staff which is to disregard the non-contiguous properties and only count the contiguous
properties or the properties directly across River Road in the acreage calculation. If this action is
taken, the developer would be allowed to build 213 units. Regardless of what decision is made, the
Board of Education is concerned about deeding Veterans Drive to the NCDOT. If the road is deeded
to the NCDOT, this agency will require removal of the speed humps, removal of stop signs, and
increase the current speed limit.
Mr. Ed Higgins, Chairman of the Board of Education, noted that Attorney Bullard referenced
equitable interest and stated when the land was purchased four years ago, the Board of Education had
planned to purchase the property. There was a plan to construct a road that would circle in front of
the schools and go back to Carolina Beach Road. In cooperation with the Board of County
Commissioners and with their generosity, the School System was able to construct a much larger
plan, now known as Veterans Park consisting of a high school, middle school, and elementary school
to be constructed within the next three years. The Board of Education holds an equitable interest to
the County’s legal interest. When this project was scheduled to be heard by the TRC, the only
contact from the County was a request to know which school district would serve the proposed
project. A response was provided to the Planning Department and no opportunity was given to the
Board of Education to present any ideas or thoughts about whether this was a suitable project to be
located near Veterans Park.
In concluding his comments, Mr. Higgins requested the Board of County Commissioners to
refer the plan back to the Planning Board for further review as suggested by Attorney Bullard.
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Chairman Davis asked if Attorney Keeter would like to speak in rebuttal.
Attorney Keeter advised that Attorney Shipman has drawn into question not only the
definition of contiguity, but whether this is an issue. He stated that standards do exist in the Zoning
Ordinance and the Commissioners have the right to interpret the Zoning Ordinance as they feel is
appropriate. The question of contiguity is an issue that needs to be determined tonight for future
projects. The definition of physical contiguity from the Zoning Ordinance means abutting, up to,
against, near, or in close proximity. Areas that are located at a distance of 4,633 feet or 3,847 feet
are not in close proximity. Statements have been made that the Commissioners can place conditions
on the approval and require that the properties used for open space areas are owned or controlled by
the developer. This statement can be argued because there is reason to believe that some properties
on the site are owned by others, including property owned by New Hanover County and the N. C.
Coastal Land Trust as shown and depicted as open space. A question to consider is how land can
be plotted for sale in manmade ponds. There are 15 to 20 acres of open space being used for density
that are manmade ponds, which cannot be developed; however, Mr. Shipman would lead the Board
of County Commissioners to believe that the developer is being generous by giving and dedicating
these open areas for non-development. These acres are Class IV soils that are wetlands and
submerged land. Attorney Keeter requested the Board of County Commissioners to deny or modify
the plan to meet suitable density requirements for development of this property.
Chairman Davis asked Attorney Shipman if he would like to speak in rebuttal.
Attorney Shipman advised that 213 units sounds like a sufficient number, but if this decision
is made by the Board of County Commissioners, the Zoning Ordinance should be thrown out the
window when approving subdivisions and building permits. This means that the Board will be
approving project by project with no standard application. This decision would ignore the General
Statutes that apply to planning and zoning in New Hanover County and other counties in North
Carolina. Mr. Higgins indicated that the Board of Education never received a notice. A site plan was
sent to the Board of Education, but there is no requirement in the New Hanover County Zoning
Ordinance or North Carolina General Statutes that notice has to be given to adjacent property
owners. In May 2001, the N. C. Court of Appeals indicated that no appeal was allowed from the
approval of a subdivision. This shows how administrative the application of zoning ordinances are
when approving subdivisions.
The Board of County Commissioners should interpret the requirements of the New Hanover
County Zoning Ordinance. If the request meets the technical requirements, or conditions can be
imposed by the Board to ensure those standards are met, the plan should be approved. For example,
the developer must own the property being submitted for subdivision approval and access must be
provided to open areas. The contiguity issue is one issue pertaining to open space with the other
being access. There can be physical contiguity or access by dedicated walkways or a public road.
It is not required that all open space be contiguous if you have access. Sending this subdivision
approval back to the TRC will only delay a decision for a number of months, and this issue will have
to be heard again by the Board of County Commissioners. The time has come for the Board to make
a decision.
Chairman Davis asked if any Commissioner would like to comment.
Vice-Chairman Greer noted that Attorney Shipman referenced two tracts of land in the
northern part of the County where subdivisions were approved with non-contiguous open space and
he requested Planning Director Hayes to respond to this statement.
Planning Director Hayes informed the Board that these tracts of land were large projects that
have been underway for two years, known as Coastal Carolina Development and West Bay Estates.
Attorney Shipman failed to show the Board the preliminary plans approved for the projects which
reflect the properties are contiguous, touching properties on the same side of the road. The two
projects are contiguous tracts owned by one developer in the northen part of the County.
Vice-Chairman Greer asked if the homeowners association is required to have a deed to the
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open space areas.
Planning Director Hayes explained that the developer has several options: (1) retain
ownership; (2) deed the property to a conservation group; or (3) turn the property over to a
homeowners association.
Vice-Chairman Greer commented on many people feeling that the plan should be sent back
to the Planning Board and he stressed the importance of everyone understanding that the subdivision
approval process is not heard by the Planning Board. The subdivision approval process is heard by
the TRC to determine if the technical requirements have been met.
Commissioner Caster noted that it was his understanding that the NCDOT will take the 1,000
feet on Veterans Drive if the road is upgraded to DOT standards and drainage requirements.
Planning Director Hayes responded that according to the local office of the NCDOT, the
drainage system must be removed from underneath the road in order for DOT to accept maintenance
of the road. There is an appeal process through the Raleigh office to seek an exception from this
requirement, but the general rule is that if encroachments exist underneath the recorded rights-of-way
of a built road, they have to be removed and relocated for maintenance of the road by DOT.
Chairman Davis asked how the green areas or open space areas are set aside to avoid
development on the property.
Planning Director Hayes explained that this is accomplished at the time of the final map
recording. As a project develops, the density calculation is continued to prevent density of more than
2.5 units per acre or 3.2 units per acre depending upon the zoning of the area. As the units are
platted and recorded, or sold and built upon, the acreage tracts are platted and recorded in the
Courthouse and set aside either through the homeowners association or conservation dedications so
the property cannot be developed.
Commissioner Caster referenced the Planning Staff’s recommendation for decreased density
and the connection of Lambs Bluff to Veterans Park and asked if the area to the south could be
connected.
Planning Director Hayes responded that no street stubs or opportunities were available to
make a connection to the south; however, there is an existing street stub in Lambs Bluff to the north.
Commissioner Caster referenced the maps presented by Attorney Shipman on the two projects
in the northern end of the County and stated that clarification should be made since the Planning
Director has stated that these projects were contiguous tracts of land.
Planning Director Hayes responded that final maps were presented to the Board by Attorney
Shipman that represent portions of a larger project. As the projects progress, open space has to be
recorded to account for the density. For example, a sliver of open space may run along a creek and
as more units are built in the project, additional amounts of open space will be recorded along the
creek. Developers do not like to commit all of the open space up-front because the project could
change. When the preliminary plan was approved a few years ago, this open space was still part of
the contiguous acreage with no intervening properties or intervening connectivity in both projects.
Commissioner Caster asked if the ownership issue in the Veterans Park Condominium project
had been resolved.
Planning Director Hayes responded that ownership of land was not an issue in the hearing and
stated this matter will be addressed when the final plans are submitted for approval.
Commissioner Caster asked if land had to be buildable to be counted as part of the density.
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Planning Director Hayes responded that land did not have to be buildable. If 100 percent of
Class IV soil areas is set aside, these acres can be counted in the density.
Commissioner Caster asked if 427 units or less could be built some where on the 201.2 acres.
Planning Director Hayes responded that the density could be redistributed over the acreage
under clustering standards.
Commissioner Caster requested an explanation of the flood plain regulations as referenced
by Ms. Seaman, particularly the concern for the County not being able to participate in the FEMA
National Flood Plain Program.
Planning Director Hayes explained that New Hanover County allows for development in the
flood plain. The density is limited in these areas to no more than 2.5 units per acre pursuant to the
clustering requirement. Some of the units in the condo project are in the flood plain but that number
does not exceed the 2.5 units per acre. He stated that he was not aware of any problems with the
Veterans Park Condominium project. Staff has focused on recognizing the original topography of
the areas to be sure that no filling has occurred to accommodate the increased density. Under the
new regulation adopted by the Board of County Commissioners, if some filling should occur, there
would be no bonus in terms of the number of units permitted.
Ms. Seaman noted that the issues referenced in her presentation about the flood plain
pertained to the mining that occurred previously on the northern end of the site.
Commissioner Caster requested Planning Director Hayes to comment on the mining issue.
Planning Director Hayes noted that currently there are some pending issues and fines that
pertain to violations of land disturbing mining activities on the site without permits.
Commissioner Caster referenced Section 51.5-2 regarding performance residential
development and asked if the condo project met the criteria under this section of the ordinance.
Planning Director Hayes responded that the criteria had been met.
Commissioner Caster referenced the comments regarding access to open space and read from
69.1 Subsection 2:
All lots or units created within a development shall have direct access to open space and
recreational areas as provided by means of public streets or dedicated walkways or by the fact
of the physical contiguity of the public land or lands in common ownership of residents.
Commissioner Caster asked if the open space definition in Section 69 could apply back to
Section 51.5(2).
Planning Director Hayes responded that Section 69 could apply back to Section 51 because
the performance residential standards reference that section in terms of open space conservation
areas. He noted that this language was repeated twice in the Zoning Ordinance.
Commissioner Pritchett requested Planning Director Hayes to comment on the following
items that she heard in the presentations: (1) the topography change that occurred on the property;
(2) the lack of notification to FEMA about the topography change; and (3) the retention pond being
built in the flood plain.
Planning Director Hayes responded there are two sets of topography on the plans, the existing
topography and the proposed topography. The topography on the southern tract has been altered
to a flat piece of property. The map misrepresents the flood plain boundary because when the
surveyor drew the line, any property below the 10 foot elevation was shown in the flood plain;
therefore, there are some areas on the southern tract shown as being in the flood plain which is not
the case. The
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REGULAR MEETING, OCTOBER 1, 2001 PAGE 821
flood plain boundary only exists on the northern half of the property down to Veterans Drive. Since
the Planning Staff is not aware of any changes in the flood plain boundary, no notification was
forwarded to FEMA. The elevation changes on the southern tract of the property were not in the
flood plain.
Ms. Seaman noted that since the water course was changed, FEMA should have been notified.
Planning Director Hayes explained that when the developer begins construction and shows
that properties are no longer in the flood plain, a map amendment is necessary, and FEMA is notified.
Currently, there have been no alterations to the flood plain on the site.
Vice-Chairman Greer commented on the remarks by Attorney Bullard regarding increased
traffic and student safety and the remarks by Ms. Seaman regarding pending violations, and he asked
if the Board could consider these issues when voting on the appeal.
County Attorney Copley noted that Assistant County Attorney Holt Moore attended the TRC
review and she requested him to explain the parameters of the decision, and she also requested
Planning Director Hayes to comment on how the traffic issue was reviewed by the Planning Staff.
She advised that the Commissioners can reverse, modify, or affirm the decision of the Technical
Review Committee because the Board has a right to interpret its own ordinance.
Vice-Chairman Greer stated that he was told that traffic could not be considered in the
decision.
Assistant County Attorney Holt Moore explained that the petitioner did not set out what was
being asked for by the appellants; therefore, two primary issues have been identified: (1) the number
of units that can be built on the property; (2) and the road being upgraded to NCDOT standards. The
use must meet the technical requirements of the ordinance.
Vice-Chairman Greer requested Planning Director Hayes to point to contiguous pieces of
property on the map that have been included in the density of the project.
Planning Director Hayes pointed out the properties on the map that were counted as
contiguous acres on the site or across the road. Staff felt that removing the peripheral open space
designated for the project would create 85 acres for the project which would accommodate 213 units.
He also pointed out that the 20 acres of tidal marsh were not counted in the density calculation.
Commissioner Caster asked if the 20 acres of tidal marsh had been included in the 201.2 acres.
Planning Director Hayes responded that these acres were not included.
Commissioner Caster asked Attorney Keeter and Attorney Shipman if there was any room
for compromise that would satisfy all parties concerned.
Attorney Keeter responded that it’s all or nothing as indicated by Attorney Shipman. The
appellants would like single-family residential development at 2.5 units per acre on 42.89 acres.
Chairman Davis asked Attorney Keeter if the appellants would support the Planning Staff’s
recommendation.
Attorney Keeter responded that the appellants would be more agreeable to 213 units than the
417 units.
Attorney Shipman stated that no discussion has been held with Attorney Keeter because of
the concerns of the residents who do not want multi-family development in that area. If the Board
decides to support Staff’s recommendation, another plan will have to be submitted for review by
TRC.
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REGULAR MEETING, OCTOBER 1, 2001 PAGE 822
Chairman Davis asked if the Planning Staff recommendation was consistent with the Land Use
Plan. Planning Director Hayes responded that the recommendation was consistent with the Land Use
Plan.
Further discussion was held on the Coastal Carolina Development and West Bay projects.
Planning Director Hayes explained these tracts of land are contiguous tracts owned by one developer.
Vice-Chairman Greer suggested for the members of the Board to consider the
recommendation of the Planning Board.
Chairman Davis expressed appreciation to persons present for the respectful manner in which
the hearing had been conducted. He stated, as a Commissioner, he felt the Board of County
Commissioners have the right to make a final decision on this issue. In order to make the project
more defensible and less intrusive to nearby residents, Staff’s recommendation for removing the
peripheral open space designated for the project leaving approximately 85 acres of land to allow Mr.
Sanders to place 213 units on the property is reasonable. This is not what Mr. Sander wants, but it
is more palatable than 427 units. Unfortunately, the ordinance does not set forth an exact standard
regarding how a piece of land qualifies as open space. Currently, each project is evaluated on its
individual basis with land qualifying for open space based upon proximity to the project. In this case,
the Planing Staff’s recommendation is more consistent with the Subdivision Regulations and Zoning
Ordinance when viewed as a whole; therefore, he could not support the determination made by the
TRC.
Motion:
Chairman Davis MOVED to amend the TRC decision and remove the peripheral open space
designated for the project leaving approximately 85 acres of land that will allow for approximately
213 units as recommended by the Planning Staff, and to require the 1,000 feet of Veterans Drive to
be brought up to NCDOT standards with pipes under the road being excluded. Commissioner
Pritchett SECONDED the motion.
Commissioner Caster advised that after reading Section 69.1(2) and verifying the link between
this section and Section 51.5(2), he felt that part of the property was connected by a public road;
therefore, he could not support the motion. He stated if this area is removed from the project, the
amount of acreage would be 128.8 acres that would allow for 322 units to be built on the property.
Substitute Motion:
Commissioner Caster MOVED to approve development of 128.8 acres of land
to allow 322 units and to require that the 1,000 feet of Veterans Park Road be brought up to NCDOT
standards.
Vice-Chairman Greer suggested not referring to pipes in the motion because this will depend
on what is required by the State Highway System.
Amended Motion:
Chairman Davis MOVED, SECONDED by Commissioner Pritchett, to amend
the TRC decision and remove the peripheral open space designated for the project leaving
approximately 85 acres of land that will allow for approximately 213 units as recommended by the
Planning Staff and to require that the 1,000 feet of Veterans Park Road be brought up to NCDOT
standards. This matter is to be remanded to the TRC for review and consideration of plans for the
project not inconsistent with these findings.
Chairman Davis called for a SECOND to the SUBSTITUTE MOTION made by
Commissioner Caster. Since a SECOND was not received, the SUBSTITUTE MOTION FAILED.
Chairman Davis called for a vote on the AMENDED MOTION. Upon vote, the MOTION
CARRIED UNANIMOUSLY.
Vice-Chairman Greer suggested for the Board to consider directing the County Attorney and
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 823
Planning Staff to review the subdivision approval process and Zoning Ordinance to change the
language to clearly define open space regulations and contiguous properties under high density
development.
The Board agreed with the suggestion made by Vice-Chairman Greer and requested the
County Attorney to work with the Planning Staff in amending the Zoning Ordinance.
BREAK
Chairman Davis called a break from 8:30 P.M. until 8:40 P.M.
PUBLIC HEARING TO CONSIDER REQUEST BY JOHN HINRICHS TO RENAME
JACKSBORO ROAD, LOCATED NEAR THE 7100 & 7200 BLOCKS OF MARKET
STREET WESTSIDE, TO OGDEN BUSINESS COURT (SN-89, 10/01)
Chairman Davis opened the Public Hearing.
Planning Director Hayes advised that the petitioner was requesting for the entire length of
Jacksboro Road be renamed to Ogden Business Court. The road length is approximately 1,750 feet
with a 60 foot right-of- way, and it extends from Ogden Park Drive northeast to the unplatted portion
of Lendire Road near the West Bay development. The entire length of Jacksboro Road is improved.
However, only the first 900 feet of the road beginning at its intersection with Ogden Park Drive has
been dedicated for public use and platted as a right-of-way. The balance of the access is a 60 foot
easement. Presently, Jacksboro Road provides access to the Planters Walk development and to
Ogden Park. Other residential enclaves in addition to a business park will also use the road for access
to Market Street. The E-911 Center has approved the name of Ogden Business Court.
The Planning Staff recommends naming the road to Ogden Business Drive instead of Ogden
Business Court because of the length of the road. Staff also recommends that the renaming
correspond only to that portion of road platted as the right-of-way until such time the balance of the
road is platted and recorded.
Chairman Davis asked if the petitioner would like to speak.
Mr. John Hinrichs asked Planning Director Hayes if the name change would apply for the
entire road.
Planning Director Hayes responded that the name change would apply only to the portion that
is platted at the current time; however, it will apply to the entire road as lots are platted and recorded.
Mr. Hinrichs advised that Ogden Business Park was in the process of growing with new
buildings being constructed . He requested the Board to rename the entire road to Ogden Business
Drive to avoid address changes for businesses in the future.
Planning Director Hayes explained that Jacksboro Road is a non-platted paved road on private
property. Once the new name is approved, Jacksboro Road will not be in existence and all addresses
will be assigned a number under Ogden Business Drive.
Commissioner Pritchett commented the names of roads around Ogden Park being confusing
and suggested changing the name to Ogden Business Lane.
Mr. Hinrichs agreed with naming the road to Ogden Business Lane.
Chairman Davis asked if anyone present would like to speak in opposition to the proposed
road name.
Hearing no comments, Chairman Davis closed the Public Hearing.
NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 28
REGULAR MEETING, OCTOBER 1, 2001 PAGE 824
Motion:
Chairman Davis MOVED, SECONDED by Commissioner Pritchett, to rename the first 900
feet of Jacksboro Road to Ogden Business Lane to correspond with the portion of the road platted
until such time the balance of the road is platted and recorded. Upon vote, the MOTION CARRIED
UNANIMOUSLY.
A copy of the order is hereby incorporated as a part of the minutes and is contained in Exhibit
Book XXVII, Page 9.
ADJOURNMENT
Chairman Davis called for a motion to adjourn the meeting.
Motion:
Commissioner Davis MOVED, SECONDED by Commissioner Pritchett, to adjourn. Upon
vote, the MOTION CARRIED UNANIMOUSLY.
Chairman Davis adjourned the meeting at 9:00 P.M.
Respectfully Submitted,
Lucie F. Harrell
Clerk to the Board