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1997-03-10 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 862 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, March 10, 1997, at 6:30 P.M. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Members present were: Commissioners Buzz Birzenieks; Ted Davis, Jr.; Charles R. Howell; Vice-Chairman William A. Caster; Chairman Robert G. Greer; Deputy County Manager, Andrew J. Atkinson, County Attorney, Wanda M. Copley; and Clerk to the Board, Lucie F. Harrell. Chairman Greer called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Deputy County Manager, Andrew J. Atkinson, gave the invocation. Vice-Chairman Caster led the audience in the Pledge of Allegiance to the Flag. NON-AGENDA ITEMS Chairman Greer announced that three minutes had been reserved to allow anyone from the public to introduce an item not listed on the Regular Agenda or comment on an item listed on the Consent Agenda. He requested all persons speaking to limit their remarks to three minutes. The following items were presented: Concern for the Number of Single Transmission Towers Being Installed in New Hanover County Mr. John Tyhacz requested the Board to amend the Zoning Ordinance to require collocation when granting a Special Use Permit for installation of single transmission towers. He informed the Board that the recent installation of the Gordon Road 180 foot transmission tower could have been avoided if the Zoning Ordinance had required collocation with an existing tower in the desired area. American Telephone & Telegraph informed the Planning Department that the company could have accommodated Bell South if they had been contacted. GTE also discussed this matter with the Planning Department and advised that Bell South drove by the GTE tower and determined it could not collocate without bothering to contact the company. Unfortunately, this information was discovered after the Special Use Permit was granted, and there is little hope of correcting this matter since the Zoning Ordinance does not require collocation whenever possible. The weakness of the Zoning Ordinance was proven again at the last Planning Board meeting when Communications 360 applied for a Special Use Permit to install a single transmission tower on Eastwood Road. The Planning Board approved the request when 360 Communications operates a tower in Dutch Square which is less than three-fourths of a mile down the road. Also, the tower on Eastwood Road will be near a residential neighborhood as was the tower on Gordon Road. Mr. Tyhacz expressed disappointment over his endeavors to draw attention to this matter, which was met with no interest or action by the Board. It appears the resounding battle cry of government that is accountable to its citizens has faded away since the November election. Mr. Tyhacz presented a map to the Board showing the number and concentration of existing towers located in a small area. Under the proposed annexation by the City of Wilmington, the County will NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 863 be receiving more requests to install single transmission towers because the City has an ordinance that requires collocation. In closing Mr. Tyhacz reminded the Board that with new technology of this type, there is no way to determine if the emissions from these towers will create a health hazard to adjacent property owners. He urged the Board to amend the Zoning Ordinance to better control the installation of transmission towers. Chairman Greer advised the current Zoning Ordinance does control the installation of transmission towers. The ordinance prohibits the location of a tower in all but one zoning district without approval of a Special Use Permit. Towers are permitted by right in industrial districts. The special use process requires a quasi-judicial hearing, which requires sworn testimony from the persons speaking and dictates that the evidence must meet the four general requirements before the Board can approve a Special Use Permit. After a decision has been made on the evidence presented, the Board cannot change this action without sworn testimony confirming that the evidence presented during the hearing was not true. Chairman Greer advised the Board was concerned about the location of transmission towers and had recommended the collocation of towers whenever possible. This requirement may not be written in the ordinance, but the effort has been made. Commissioner Davis strongly objected to Mr. Tyhacz stating that his concerns had fallen on a deaf ear. He advised this was not the case, and reported the County Attorney had written a letter to Mr. Tyhacz explaining that if he felt issues were handled incorrectly during the Public Hearing when approving the tower on Gordon Road, he had the option of bringing people in to testify under oath that the information presented was not true. Commissioner Davis informed Mr. Tyhacz that if he followed this procedure, the Board of County Commissioners would be glad to listen to any concerns. Mr. Tyhacz advised that he thought more assistance would be provided when he informed the Board at the January 5, 1997, meeting that the largest communication company in the country was willing to allow Bell South to collocate in lieu of installing a single transmission tower. He stated if he had been a County Commissioner, he would have at least inquired about the comment. Commissioner Davis responded the evidence presented at the Public Hearing was given under sworn testimony; therefore, any further consideration of the issue would have to be presented by persons willing to testify under oath that the information was not correct. APPROVAL OF CONSENT AGENDA Chairman Greer requested removal of Consent Agenda Items 6, 7, and 10 for further discussion. Commissioner Davis requested removal of Consent Agenda Item 9 for further discussion. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to remove Consent Agenda Items 6, 7, 9, and 10 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 following sets of minutes as presented by the Clerk to the Board: NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 864 Regular Meeting - February 17, 1997 Work Session, Carolina Beach Town Council - January 21, 1997 Retreat - February 4, 1997 Work Session on Building Code Enforcement - February 10, 1997 Adoption of Resolution to Award Bid #97-0289 (Contract #97-0289) to Musco Lighting, Inc. to Provide a Lighting System for the Ballfields at Ogden Park and Approval of Associated Budget Amendment #97-26 The Commissioners approved Budget Amendment #97-26 and adopted a resolution awarding a bid in the amount of $94,300 to Musco Lighting, Inc., the only bidder, to provide a lighting system for two softball/baseball fields at Ogden Park. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. A copy of the contract is on file in the Legal Department. Approval of Budget Amendment #97-26 - Parks Department The Commissioners approved the following Budget Amendment: DebitCredit Contribution from Supper Optimist Club $30,000 Other Improvements $30,000 Purpose: To establish a budget for the contribution to be received from the Supper Optimist Club to be used for the Ogden Park Pavilion and the lighting system at Ogden Park. Adoption of Resolution to Award Bid #97-0261 (Contract #97-0261) to Jacobsen Textron-Carolinas for the Purchase of Two Reel Type Mowers - Parks Department The Commissioners adopted a resolution awarding a bid in the amount of $29,800 to Jacobsen Textron-Carolinas, the lowest responsible bidder, for the purchase of two reel type mowers for the Parks Department. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. A copy of the contract is on file in the Legal Department. Acceptance of School-Age Accreditation Grant Award - Cooperative Extension Service The Commissioners accepted a School-Age Accreditation grant in the amount of $9,000 to provide the initial education materials needed for school-age accreditation. The grant period will be from April 1, 1997, or whenever funds are received, until September 30, 1997. No County match or funding is needed. Adoption of a Resolution Rejecting Bids Received (Bid #97-0288) for the Purchase of a Suburban Vehicle for the Emergency Medical Services Department The Commissioners adopted a resolution rejecting the two bids received for the purchase of a suburban vehicle for the Emergency Medical Services Department. Staff requested this action since no decision has been rendered on the possible transfer of the EMS operation to New Hanover Regional Medical Center. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 865 A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. Ratification of Contract With McGladrey and Pullen, LLP to Provide Audit Services For New Hanover County The Commissioners ratified a contract with McGladry and Pullen, LLP to provide audit services to New Hanover County for the period of June 30, 1997 through June 30, 2000. The contract amount for June 30, 1997, is not to exceed $68,000. The subsequent year's contract amount will be negotiated under the terms of the contract. The Chairman was authorized to execute the necessary contract documents. A copy of the contract is on file in the Legal Department. Approval of a New Public Health Nurse I Position for the Elementary Schools and Approval of Associated Budget Amendment #97-0132 The Commissioners approved the new Public Health Nurse I position and approved Budget Amendment #97-0132 to accept funding for the position by the Board of Education. The purpose of the position is to provide nursing care, health assessments, and provide the availability of a nurse at all times to assist school personnel in the elementary schools. The position will be for ten months a year. Budget Amendment #97-0132 - Health/School Health DebitCredit Health/School Health Contribution/Schools $6,922 Salaries $5,079 FICA 388 Medical Insurance 1,043 Departmental Supplies 50 Employee Reimbursement 162 Uniforms 200 Purpose: To budget funds for an additional Public Health Nurse I position. Approval of Budget Amendment #97-24 - Controlled Substance Tax - Sheriff's Department The Commissioners approved the following Budget Amendment: DebitCredit Controlled Substance Tax $6,536 Capital Project Expense $6,536 Purpose: To increase the budget for additional revenue received on February 3, 1997. Controlled Substance Tax funds are budgeted as received and must be used for law enforcement activities as the Sheriff deems necessary. Approval of Budget Amendment #97-25 - Federal Forfeited Property - Sheriff's Department The Commissioners approved the following Budget Amendment: DebitCredit Federal Forfeited Property $13,673 NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 866 Capital Project Expense $13,673 Purpose: To increase the budget for additional revenue received on February 7, 1997. Federal Forfeited Property Funds are budgeted as received and must be used for law enforcement activities as the Sheriff deems necessary. Adoption of Resolution to Add Benjamin Avenue to the State Highway System The Commissioners adopted a resolution to add Benjamin Avenue in Dixon Acres Subdivision to the State Highway System. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. APPROVAL OF CONSENT AGENDA ITEM 6, A RESOLUTION TO AWARD BID #97- 0260 FOR THE PURCHASE OF A QUICK RESPONSE VEHICLE FOR THE FIRE SERVICES DEPARTMENT Chairman Greer inquired as to whether funds would be appropriated from the Fire Service District for the purchase of a quick response vehicle? Deputy County Manager Atkinson responded that funds would be appropriated from the Fire Service District. Motion: Chairman Greer MOVED, SECONDED by Commissioner Davis to adopt a resolution awarding a bid in the amount of $92,000 to Fire Attacker, Inc. of Petersburg, Michigan, the lowest responsible bidder, for the purchase of a quick response vehicle for the Fire Services Department. The Chairman was authorized to execute the necessary contract documents. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. A copy of the contract is on file in the Legal Department. ACTION DEFERRED ON CONSENT AGENDA ITEM 7, A RESOLUTION TO AWARD BID #97-0205 TO MOTOROLA, INC. FOR THE PURCHASE OF RADIO EQUIPMENT AND ACCESSORIES Chairman Greer expressed concern for entering into a contract with Motorola, Inc. when the County was not ready to purchase radio equipment. Deputy County Manager Atkinson advised the County was scheduled to purchase radios for the Engineering Department. After reviewing the project, Staff felt it would be more cost-effective to consider this type of contract since the number of users will increase on the 800 MHZ system over the next two years in a sporadic manner. Chairman Greer advised the Board agreed to lease equipment not purchase radios. Concern was expressed for approving a contract at this time when the Board was not sure about the procedure to be followed in purchasing the radios. Deputy County Manager Atkinson advised that purchasing the radios would be just as economical as leasing the equipment because leasing the equipment for two years would spread the cost over a two-year period incurring interest charges. Chairman Greer inquired as to why the County was requested to enter into a two-year lease agreement with Motorola if this was not the most economical route to follow? NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 867 Deputy County Manager Atkinson advised the two-year lease agreement was for the major trunking system of the 800 MHZ system, not for the purchase of radios. Commissioner Birzenieks advised the Sheriff and Wilmington Police Department were in the process of securing grant funding for the purchase of radios. He recommended waiting to see what the Sheriff will do before moving forward with the contract because he may not desire to use Motorola radios. Deputy County Manager Atkinson emphasized the importance of consistency among the users and reported the purpose of the proposed contract was to coordinate the radio purchases with the Motorola rental agreement for the trunking system. Staff feels this would be the preferred procedure until the end of the two-year lease at which time the entire 800 MHZ system will have to be bid to include the Sheriff's Department, Inspections Department, and the entire county-wide system. Commissioner Howell commented on being confused about the issue and recommended deferring action. Deputy County Manager Atkinson responded Staff would be glad to provide a Work Session on the 800 MHZ system. Consensus: After discussion of needing more time to study the issue, it was the consensus of the Board to remove this item from the Consent Agenda with no action taken at this time. ADOPTION OF A RESOLUTION PRESENTED BY THE NEW HANOVER COUNTY COMMUNITIES ACTION COALITION TO REQUEST THE GENERAL ASSEMBLY TO AMEND THE ANNEXATION STATUTE Commissioner Davis requested the Board to consider removing the following lines from the last paragraph of the resolution presented by the New Hanover County Communities Action Coalition: ...and that a moratorium be placed on all annexation proceedings until a date deemed appropriate by the Committee, and, also, all changes or amendments apply to all pending annexation. Commissioner Davis expressed concern for placement of a moratorium on all annexation proceedings and the recommendation that all changes or amendments apply to all pending annexation litigation. Chairman Greer advised the intent of the resolution was to stop action at this point and move forward with amending the annexation statute. Motion: Commissioner Davis MADE A MOTION to remove the last four lines of the last paragraph. DUE TO THE LACK OF A SECOND, THE MOTION FAILED. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to adopt the resolution as presented by the New Hanover County Communities Action Coalition. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Howell Vice-Chairman Caster Chairman Greer Voting Nay: Commissioner Davis NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 868 A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. APPROVAL OF CONSENT AGENDA ITEM 10, A RESOLUTION ENDORSING THE PROPOSED EXPANSION OF THE NORTH CAROLINA AQUARIUM AT FORT FISHER Chairman Greer recommended removing the dollar figures from the last paragraph of the resolution to read as follows: NOW, THEREFORE, BE IT RESOLVED that the Board of Commissioners of New Hanover County endorses the proposed expansion of the North Carolina Aquarium at Fort Fisher and urges our State legislative delegation and the North Carolina General Assembly to support the proposed expansion and further encourage the community to support the efforts of the North Carolina Aquarium Society to raise private funds for the expansion. Commissioner Howell expressed concern for the fourth paragraph referencing the fact that the Board of County Commissioners had reviewed the proposed renovation and expansion of the North Carolina Aquarium when he had not seen the plan. He recommended removal of the paragraph since it was not a true statement. Vice-Chairman Caster reported he had seen the plan and stated if the other members of the Board had not seen the proposed expansion, he would recommend deferring action on this item until the Board could review the plan. Commissioner Birzenieks advised he had no problem with the changes recommended by Chairman Greer and Commissioner Howell. Motion: After further discussion, Vice-Chairman Caster MOVED, SECONDED by Commissioner Howell to delete the fourth paragraph and change the last paragraph to eliminate the dollar figures as recommended by Chairman Greer. 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 XXIII, Page 35. PRESENTATION BY GARY PARKER CONCERNING ENVIRONMENTAL CONCERNS PERTAINING TO FOREST ACREAGE CUTTING VS. FOREST MANAGEMENT PRACTICE Mr. Gary Parker, a resident of 714 Everett's Creek Drive, expressed concern for the manner in which trees were being cut in New Hanover County. He placed emphasis on the need to strengthen the tree harvesting exemption in the Coastal Area Management Act (CAMA) and the Sedimentation Pollution Control Act as well as correct flaws in the County's Conservation Overlay District Ordinance. Mr. Parker presented slides on a 50 acre tract of land with 7,000 trees that had been cut to the marsh edge. He advised that loggers should be aware of the regulations under the Sedimentation Pollution Control Act which prohibits the cutting of trees to the marsh line. If this type of tree cutting occurs, loggers should be required to restore the land as outlined under the Sedimentation Pollution Control Act for failure to comply with the best forest management practices. This type of tree cutting should be enforceable under CAMA regulations. Unfortunately, powerful interest groups in the State have influenced the drafting of the legislation and violations are not enforceable. The County should review its Conservation Overlay District Ordinance because it currently applies only to subdivision applications or large commercial/industrial development. Small land uses are exempt from the Conservation Overlay District. The Conservation Overlay District Ordinance should require wildlife habitat buffers in NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 869 riparian areas, and penalties should be costly enough to curtail violations of the ordinance. In closing Mr. Parker reported he had been told by County and State employees that nothing could be done under the existing Sedimentation Pollution Control Act or the Coastal Area Management Act regarding the timber harvesting exemption. He stated if these people continue to feel that nothing can be done, the environment for the future cannot be protected. It may be too late for the tract of land shown on the slides, but the Board of County Commissioners can prevent this type of tree cutting in the future by enforcing more aggressively the existing ordinance and developing new and better regulations. He requested the Board to perform wetland mapping and strengthen regulations to avoid the unnecessary clearing of land. Mr. Parker expressed appreciation to the Board for allowing him to make the presentation and presented a notebook to each County Commissioner showing pictures of the 50 acre tract of land before and after the trees were removed. Vice-Chairman Caster asked if the trees were removed for commercial use? Mr. Parker advised that a logging company from South Carolina was hired by the property owner to remove trees that were damaged from Hurricane Fran. Unfortunately, the logger persuaded the owner to remove more trees. Discussion was held on developing more stringent regulations. County Attorney Copley explained that if the federal or state legislation preempted the County, it would not be possible to become involved with the regulations. However, in areas not preempted, the County could strengthen its existing regulations. Assistant County Manager, Dave Weaver, reported it would be difficult to change the state legislation to remove the exemption for agriculture and forestry. He advised the best option would be to enforce regulations on the local level. Commissioner Birzenieks inquired as to whether the N. C. State Forestry Service had been contacted about tree removal regulations? Mr. Parker reported the Forestry Service had not been contacted. He urged the Board to move forward with protecting the environment in New Hanover County. Consensus: It was the consensus of the Board to request Staff to consult with the N. C. State Forestry Service and N. C. Cooperative Extension Service to develop a course of action that would be prudent for New Hanover County. Chairman Greer, on behalf of the Board, expressed appreciation to Mr. Parker for presenting this matter to the Board. PRESENTATION BY THE WRIGHTSVILLE SOUND/AIRLIE ROAD ASSOCIATION AND CONSIDERATION OF A RESOLUTION COVERING DEVELOPMENT AND DRAINAGE CONCERNS Mr. Tony Harris, Chairman of the Wrightsville Sound/Airlie Road Association, read a letter dated February 26, 1997, mailed to the Board of County Commissioners with copies forwarded to the County Manager, County Attorney, and Planning Director to discuss rapid development and the ensuing drainage problems that accompany that type of uncontrolled growth. He requested the Board to adopt the following resolution: NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 870 WHEREAS, New Hanover County continues to experience unprecedented growth and to suffer from inadequate drainage and current development policies have not remedied this situation; and WHEREAS, New Hanover County continues to grow at a rapid rate both residentially and commercially; and WHEREAS, New Hanover County does not have at this time an updated plan or policy needed to address these issues; and WHEREAS, inadequate drainage, clear cutting of watershed areas, and impact on water quality are of great concern to all citizens of the county; and WHEREAS, the current Land Use Plan attempts to address some of these issues (See Article 1.0 through 1.3) in the Resource Protection Section of the New Hanover County Land Use Plan and other approved land use plans such as Airlie Road...A Sense of Place and the Middle Sound Neighborhood Plan; and WHEREAS, the updated New Hanover County Land Use Plan and completed Pages Creek Watershed Study should reflect and address these issues. NOW, THEREFORE BE IT RESOLVED that until New Hanover County has adopted an official drainage plan and the New Hanover County Land Use Plan has been updated for 1997-1998 that no rezoning occur in the resource protection areas and conservation areas, and that any interim regulations not be used to subvert this purpose. Mr. Harris advised that several persons were present and would like to comment. Mr. Walter E. Stein, representing 95 homeowners from MacCumber Terrace, requested the Board to adopt the resolution as presented by Mr. Harris. Mr. Jeffrey T. Harris, representing the League of the Greenville Loop Defenders read the following letter and urged the Board to adopt the resolution presented by Mr. Tony Harris: Dear Honorable Board of Commissioners: In the context of the substantial number of rezoning requests, which are clearly inconsistent with the Land Use Plan and its policies governing development, the League of Greenville Loop Defenders representing over four hundred homeowners, respectfully requests the Commissioners to adopt the resolution as proposed to update the Land Use Plan. The purpose of the proposed resolution is to delay consideration for all rezoning requests within the Resource Conservation areas of the County unless they are consistent with the Land Use Plan and its policies. The Land Use Plan, through full public participatory workshops, is suppose to represent the public's vision of the County over a period of five years after which the plan is subject to an update, which I believe is required by state planning zoning laws and is long overdue. Granting wholesale rezonings in a piecemeal and haphazard manner in areas not designated on the Land Use Plan for such uses, is clearly not in the public interest and constitutes a disregard for the Land Use Plan and its policies. We urge you to restore the NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 871 community's confidence in its Land Use Plan and the County's decision-makers by adopting the proposed resolution. Should you decide to adopt the resolution tonight, an update of the Land Use Plan would provide the public with the opportunity to shape the future of their communities while at the same time provide the County Commissioners with a set of updated and revised policies upon which future development decisions can be made with the confidence that the decisions represent the will of the community. Mr. Harris urged the Board to adopt the resolution as presented. Ms. Jacqueline Martin, 5225 Marina Club Drive, reported as a resident of New Hanover County and a member of the Board of Directors of the North Carolina Coastal Federation, she would encourage the Board to adopt the resolution as proposed. Ms. Martha Helen Orth, representing the New Hanover County League of Women Voters, reported the League was supportive of the resolution to defer rezoning in resource protection and conservation areas as presented by Mr. Tony Harris. Mr. Hunter Thompson, President of the Council of Neighborhood Associations, requested the Board to adopt the resolution as presented. Mr. Curtis Wright, President of the Providence Homeowners Association and a representative of the Middle Sound area, urged the Board to support the resolution. He advised that under N. C. Statutes, rezonings were an arduous and burdensome process for the petitioner. The time has come for the Board to protect the resource protection areas and wetlands with support of quality growth. Many neighborhoods are present and have stepped forward to express their concerns about protecting neighborhoods and the quality of life in New Hanover County. Mr. Harris advised the future of New Hanover County depends on protecting buffer zones between urban and estuarine areas. Hopefully, New Hanover County will not be faced with a water shortage that has been experienced by Virginia Beach because of uncontrolled growth. The Board was urged to adopt the proposed resolution that would prohibit rezoning in resource protection and conservation areas until New Hanover County has adopted an official drainage plan and completed the Land Use Plan Update and Pages Creek Watershed Study. He advised this type of action by the Board would bring back the creditability of government to the citizens of the community. Vice-Chairman Caster requested Mr. Dawson, the owner of the engineering firm hired by the County to perform the Pages Creek Watershed Study, to comment on the amount of time needed to complete the study. Mr. Dawson reported with the scope of work defined, the Pages Creek Watershed Study should be completed by August. In the recommendations to be presented to the Board, the County will have the option of expanding to regional stormwater facilities in lieu of non-structural measures such as additional land uses, zoning regulations, additional overlay districts, or special assessments for drainage structures. The study will focus on providing any measure that will improve water quality in the area. Commissioner Howell expressed grave concern for the accusation that this Board of County Commissioners and former boards had granted wholesale rezonings in a piece-meal haphazard manner with NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 872 no adherence to the Land Use Plan. He advised the current Board has considered the interest of the citizens when reviewing and acting on rezoning requests. Vice-Chairman Caster inquired as to the number of rezonings that have occurred in the resource protection areas? Planning Director Hayes responded a large amount of activity is occurring along the Military Cut-Off corridor. Several rezoning decisions have been made along Military Cut-Off Road as it extends to Wrightsville Avenue with some areas encroaching next to a resource protection area. The major focus of the County's effort has been to control residential density in the resource protection areas. Commissioner Davis asked when a report would be presented on interim drainage regulations? Assistant County Manager, Dave Weaver, reported Staff had developed a basic set of workable drainage regulations that are ready to be carried to the Planning Board. The new regulations are more stringent than existing policies, but are not as strict as the original recommendations approved by the Planning Board. Commissioner Davis stated the drainage problem should be addressed, and he recommended scheduling a Work Session as soon as possible to review interim drainage regulations. Chairman Greer advised that he was born and raised in New Hanover County and stated he ran for office to preserve the quality of life in a rapidly growing community. He explained that this statement sounds simple; however, when rendering decisions all factors and interests must be considered. The concerns expressed about growth and the need to protect resource and conservation areas are vital issues that must be addressed. Interim drainage regulations are being developed to relieve drainage problems until a county-wide drainage plan can be implemented. An engineer has been hired to perform the Pages Creek Watershed Study which should provide the data necessary to move forward with developing a drainage plan. Chairman Greer emphasized the importance of everyone understanding that New Hanover County is below sea level with a high water table and poor soils. The Board must address this problem by being sure that people do not build in low-lying areas and measures are implemented to ensure that creeks flow naturally. He stated the concerns presented tonight were the same as his, and advised that as a County Commissioner he had strived to render decisions that would protect the quality of life in New Hanover County and benefit its citizens. Mr. Harris expressed concern for allowing one piece of property to be rezoned from residential to office and institution which opens the door to other rezonings. He requested the Board to vote on the proposed resolution. Vice-Chairman Caster reported he was not prepared to vote on the resolution; however, he would be ready to cast a vote on March 24, 1997. A lengthy discussion was held on the proposed interim drainage regulations. Chairman Greer reported he felt the drainage regulations should be presented to the Board of County Commissioners at the same time they were forwarded to the Planning Board. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 873 Commissioner Birzenieks recommended deferring action on the resolution until the next meeting to be held on March 24, 1997, at 9:00 A.M. After discussion among the community groups about March 24, 1997, and April 7, 1997, being morning meetings, the groups agreed to postpone action on the resolution until the next night meeting to be held on May 5, 1997. Consensus: It was the consensus of the Board to vote on the resolution at the May 5, 1997, meeting. PRESENTATION BY THE NORTHCHASE HOMEOWNERS ASSOCIATION TO REQUEST RELIEF FORM EXISTING DRAINAGE PROBLEMS Mr. Frank Caputo, representing the NorthChase Homeowners Association, reported on severe drainage problems being experienced in the NorthChase Subdivision during summer thunder storms. After studying the matter, it was found that drainage ditches had not been cleaned out in the subdivision and the water outflow ditches leading from the subdivision to Highway 132 were obstructed. The property owners have addressed this problem by cleaning out the ditches and the North Carolina Department of Transportation has provided assistance with cleaning out the outflow ditches along Highway 132. The major problem has been design flaws in the drainage system which was approved by New Hanover County during the subdivision review process. There is no control over the outflow of water which causes the water to back up to NorthChase properties creating flooding of neighborhoods, impassable roads, mosquitos, and the inability of emergency vehicles to respond to calls. The citizens have tried to resolve these problems through the developer, the management company, and New Hanover County with no response. The Board was urged to consider the petition submitted by the residents that will require the appointment of a drainage board to address the drainage problems. Chairman Greer reported the petition was filed under an old State Statute that requires the appointment of an impartial drainage board to study the flooding problems. He asked Mr. Caputo if he was cognizant of the fact that any recommendation made by this board would have to be paid by the property owners residing in NorthChase? Mr. Caputo reported he was aware of this fact. Chairman Greer stressed the importance of everyone understanding that each homeowner may be required to pay as much as $5,000 to implement the recommendations presented by the drainage board. Mr. Ron Ryan, a member of the NorthChase Homeowners Board of Directors, stated the petition was filed to obtain help in resolving a serious flooding problem. County Attorney Copley reported if the petition was accepted by the Board of County Commissioners and filed, it would only apply to NorthChase. The residents in NorthChase would not have authority to require any property owner beyond the subdivision to fund a drainage project. For example, if a drainage problem was caused by a property owner living five miles away, the Board of County Commissioners would not have authority to require funding participation by that property owner. On the other hand, if New Hanover County developed its own drainage regulations, the County would have authority to impose these regulations in the unincorporated County. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 874 Mr. Ryan advised the interpretation of the State Statutes by the County Attorney was not the same as the attorney representing the NorthChase Homeowners Association. County Attorney Copley offered to discuss this matter with the attorney representing NorthChase. Mr. Ryan reported the property owners would not be willing to pay for cleaning up other areas of the County. Consensus: After further discussion, it was the consensus of the Board for the County Attorney to meet with the attorney representing the NorthChase Homeowners Association to further discuss the requirements of the drainage petition submitted by the residents of NorthChase. Mr. William S. Funderburg, a resident of 4321 Blue Clay Road, reported he was a downstream landowner below NorthChase. He presented a packet on the chronology of events that have occurred since the inception of the NorthChase Subdivision. He advised that the NorthChase Homeowners Association was comprised of only one- third of the lots in NorthChase with the Ammons Corporation owning the remaining lots. Drainage problems have occurred in the sections that were approved by the County under the original Planned Development District. As a matter of record, he has appeared before the federal court in Washington, D.C. regarding a lawsuit filed against the District Corps of Engineers as referenced in Exhibit 6. He advised he was concerned about flooding resulting from upstream residential and commercial development in wetlands as authorized under Nationwide Permit 26. This was a blanket permit that is still in effect which allows the developer to build in wetlands without being required to follow the Land Use Plan, the Section 401 State Plan, or the Federal 404 Clean Water Act. When construction began in the NorthChase Subdivision, the streets were undercut to give the appearance of the lots being higher in the wetland areas; consequently, severe flooding has occurred with heavy rainfalls. Mr. Funderburg requested the Board to review Exhibit #2, a copy of the general drainage policies and practices for the State of North Carolina. He advised he had met with the drainage hydrologic engineers about the outer loop bypass going through his family property and the edge of NorthChase. Concern was expressed for the location of the bar pits and drainage because Pumpkin Creek flows through his property from NorthChase and from County property. As noted in the Pendergrast vs. Aiken lawsuit in August 1977, a decision was rendered to allow each landowner to make reasonable use of his/her land even though by doing so, he or she may alter in some way the flow of surface water thereby harming other landowners, liability being incurred only when this harmful interference is found to be unreasonable and causes substantial damage. Mr. Funderburg advised the Ammons Corporation certified and signed off on the plot plans with no minimum standards met when these plots were approved by the County. Unfortunately, the buyers were not aware of the drainage problems. A letter has been forwarded to Vice-President Al Gore, Jr. requesting elimination of Nationwide Permit 26. Emphasis was stressed on the importance of New Hanover County protecting downstream landowners. Mr. Funderburg commented on the availability of the flood plain maps in the Planning Department and expressed concern for the maps not being used. The maps show the locations of wetlands which greatly assist with reducing flooding. Development should not occur in these areas. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 875 Chairman Greer expressed appreciation to the persons present for their remarks. BREAK: Chairman Greer called a break from 8:30 P.M. until 8:49 P.M. CONSIDERATION OF REQUEST FOR THE PLANNING DEPARTMENT TO SUBMIT FUNDING TO THE NORTH CAROLINA FINANCE AGENCY (NCHFA) SINGLE FAMILY HOUSING REHABILITATION PROGRAM Staff Planner, Wanda Coston, advised that New Hanover County was eligible to apply for funding in the amount of $400,000 from the N. C. Finance Agency. The funds will be awarded competitively and may be used to assist very low and low income owner-occupied households to rehabilitate single family dwellings. The Board was requested to authorize the Planning Staff to submit an application in the amount of $400,000 with a County match of $6,000 per unit at an approximate cost of $60,000 to $72,000 depending on the number of units rehabilitated. Chairman Greer asked why the County match would have to be removed from the contingency account or fund balance? Deputy County Manager Atkinson advised that rehabilitation funding had been used for the current year; therefore, funds would have to be allocated. Chairman Greer explained that he could not support allocating additional funds in the amount of $72,000 because of the predicted shortfall in the FY 1997-98 Budget. Commissioner Davis agreed and stated $72,000 was a large sum of money in a tight budget year. Chairman Greer asked if any member of the Board would like to make a motion? No action was taken. PUBLIC HEARINGS Chairman Greer announced that Item B (Z-580), an appealed case, had been postponed until May 5, 1997, at the request of the petitioner. CONTINUED PUBLIC HEARING TO CONSIDER REQUEST BY NELLO FILIPPINI FOR MATT HOLDINGS, INC. TO REZONE 1.3 ACRES AT THE TERMINUS OF ROYAL STREET IN THE 2700 BLOCK OF US HIGHWAY 421 TO I-2 HEAVY INDUSTRIAL FROM R-15 RESIDENTIAL Chairman Greer opened the Public Hearing. Mr. Timothy Matt, owner of Matt Holdings, Inc., reported on rezoning 1.3 acres at the terminus of Royal Street on US Highway 421 to I-2 Heavy Industrial from R-15 Residential to accommodate a renovation of his company, Triple T Parts and Equipment. He advised he had been speaking with Pastor Melton of the Pine View Baptist Church who had concerns about the rezoning. Commissioner Davis stated the purpose of continuing the Public Hearing on February 3, 1997, was for the petitioner to meet with the adjoining property owners, and he asked if this meeting had been held? Mr. Matt advised the meeting did not occur because Mr. Filippini had become disabled during this period of time, and he did not realize it was incumbent upon him to arrange to schedule a NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 876 meeting. He offered to meet with the adjacent property owners if this would be agreeable with the Board. Pastor Melton stated he would be glad to discuss the matter with Mr. Matt. Consensus: After further discussion, it was the consensus of the Board to continue the Public Hearing until April 7, 1997, in order to allow Mr. Matt time to meet with adjoining property owners. PUBLIC HEARING TO CONSIDER A REQUEST BY DAVID SWAIN TO REZONE APPROXIMATELY 4.5 ACRES ON THE EAST SIDE OF MILITARY CUT-OFF (1100 BLOCK) NORTH OF LANDFALL TO B-1 BUSINESS FROM O-1 OFFICE AND INSTITUTION (Z-590, 1/97) Chairman Greer opened the Public Hearing. Planning Director Hayes reported the Planning Board voted six (6) to zero (0) to recommend approval of the application as submitted with the understanding that future requests to expand commercial zoning to the north would not be supported. The Planning Board felt the rezoning would have little impact on adjacent land uses in support of its position. During debate, one member felt that the O-I Zoning should be retained to act as a buffer between commercial uses to the south and the undeveloped residential land to the north. Both the Planning Board and Planning Staff recommended approval of the rezoning request. Commissioner Davis asked if the Planning Board agreed with the Planning Staff regarding no further expansion of commercial zoning to the north? Planning Director Hayes reported the Planning Board did agree with the Planning Staff. He reported this was the last petition that ends at the branch library site. Commissioner Howell asked if the wetland adjacent to the property was buildable? Planning Director Hayes responded the wetlands had been delineated in the plan and no development would occur in this area. Commissioner Howell inquired as to whether there was an outfall in this area? Planning Director Hayes responded the property had ditches flowing from the commercial center at Landfall southwesterly toward Bradley Creek and into a large drainage area that breaks and flows north toward Howes Creek. Commissioner Howell asked if the developer would have to retain the water on site? Planning Director Hayes reported the N. C. Division of Environmental Management would govern the retention regulations; however, he was not sure whether Mr. Swain had prepared a drainage plan. Commissioner Davis asked if the property was in the conservation and resource protection area? Planning Director Hayes responded the property was in the resource/conservation classification. Commissioner Birzenieks expressed concern about traffic, drainage, and protection of the headwaters in Howes Creek. He advised it was his understanding that the former Board had agreed NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 877 to prohibit commercial development north on Military Cut-Off Road beyond the Wilson's Grocery Store. Now, it appears the commercial development continues to move northward and traffic will become impossible during the summer months. Planning Director Hayes advised a Public Hearing has been scheduled by the N. C. Department of Transportation in April to discuss the widening of Military Cut-Off Road. Also, the Eastwood Road widening project has been delayed and discussion had occurred about combining the two widening projects into one construction job. The N. C. Department of Transportation is working to speed up the widening of the two arterials. Chairman Greer inquired as to whether anyone from the public would like to comment. Mr. David Barefoot, the Attorney representing the petitioner, Mr. David Swain, reported the proposed rezoning would square off the zoning districts. This request was presented to the Planning Board and unanimously approved. The proposed rezoning would be a logical extension of the existing commercial district, water and sewer services are available for commercial development, and there will be a retention pond on site to retain the stormwater runoff. Mr. David Swain, the petitioner, reported since arriving in Wilmington six years ago, he had tried to develop a project that would be attractive to the community. A sketch was presented of the 40,000 square foot retail complex with specialty shops that will be appealing to the community and tourists visiting Wrightsville Beach. The front of the property is zoned B-1, and the proposed rezoning will allow the final phase of the project to be completed. Engineering services have been performed on the site with stormwater runoff to be retained on the property. Under Office and Institutional zoning, the project will have to meet certain density and square footage requirements. By constructing retail space, the total amount of construction will be reduced. The property will be aesthetically attractive and provide ample parking for the retail shops. The proposed rezoning will allow the three tracts to be zoned B-1 Business. The Board was requested to approve the rezoning as recommended by the Planning Board. Mr. Curtis Wright, President of Providence Homeowners Association, expressed the following concerns: (1)Approximately one and one-half years ago, the property was moved to the north with additional buffering. North Carolina Statutes require a rezoning to show that a benefit has been provided to the public, not just a preferential benefit. He asked if the rezoning was for a public necessity? There are 342,000 square feet of vacant retail space in this area. A map was presented reflecting the retail areas to be constructed and the vacant retail shops. The law states a public necessity must exist. Phase II of this project is not built, therefore, a public necessity cannot exist. There will be a negative impact on the environment and traffic will only increase. Mr. Doug Bowers, District Engineer for the local office of the N. C. Department of Transportation will be holding a Public Hearing in April with hopes of widening the Military Cut-Off Road by the year 2002. Does New Hanover County plan to walk through the required steps before approving the rezoning? Mr. Swain can construct this phase of the project under the existing O&I zoning. The State law clearly states that the petitioner should be required to present substantial information to the Planning Board and Board of County Commissioners showing the land cannot be developed under O&I before approving another NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 878 rezoning district. Is this the most appropriate use of the land? The State law requires the use to be appropriate for a specific parcel of land. Currently, no drainage plan has been presented to show whether the stormwater runoff will flow to the north or south. (2)The second issue is creditability. SHOD was adopted by the Board of County Commissioners to control commercial development on Military Cut-Off Road while maintaining a scenic highway. In closing, Mr. Wright stated the public necessity nor benefit to the public has been shown. He urged the Commissioners to curtail further commercial development north on Military Cut-Off Road. Mr. Bill Hart, a resident of 401 Crooked Creek Lane, expressed appreciation for an opportunity to speak in opposition to the proposal. He explained the hydrologic conditions that existed before development in this area and stated enormous changes have occurred. A majority of the property is located in the Howes Creek Watershed which will greatly impact the quality of water in this estuarine creek. He stated approval of the proposed rezoning would be contrary to good public policy for the protection of water quality in this area of the county. Mr. John Tyhacz advised the petitioner did not present any evidence on the need to construct additional retail space in this area. He reported within a three-mile radius, there are 1,349 businesses composed of 396 retail operations, 126 restaurants, 391 personal services, 238 business services, 81 car service centers, and 117 educational and/or government business facilities. He urged the Board to consider these figures and deny the request for additional retail space. Mr. Randy Crow commented on deferring action on the petition submitted by Raiford Trask, Jr. regarding the rezoning of 85.04 acres on the east side of Military Cut-Off Road, and he requested the Board to defer action on Mr. Swain's request until a decision had been rendered on the Trask property. Mr. Swain reported two major issues have been presented: (1)Stormwater Runoff: An engineer has been hired to accommodate the stormwater runoff on the site. The current zoning of O&I will allow for more parking and buildings to be placed on the land in lieu of the B-1 Business District. (2)Vacant Retail Space: The figures presented on the vacant retail space do not appear to be correct. Before moving forward with the project, a survey was made based upon the number of households, personal income, and population of persons living in the vicinity. The figures indicate there is a market for more retail uses. Mr. Swain advised he met with Mr. Wright and Mr. Tyhacz about their concerns; however, it appears they are anti-growth in this part of the community. When a developer submits a well prepared plan that does not totally utilize the total construction square footage and will retain the stormwater runoff on site, the Board should consider the request and the need for services in the area. Mr. Curtis Wright reported that he and Mr. Tyhacz went to each vacant site and asked if the vacant space could be rented. Each property owner asked if they were willing to make a commitment of 50% for construction of a building. He stated a community must be in place to utilize retail uses. He asked if sufficient evidence NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 879 had been supplied in writing to show a public need, a public benefit beyond the individual property owner, and that public services, such as roads, sewer, water, and environmental impacts were in place? He stated this was a speculative piece of property for Phase II of a project when Phase I had not been built. Attorney Barefoot reported he would not dignify the arguments presented by Mr. Wright and Mr. Tyhacz. He advised that State law requires the Board of County Commissioners to decide if a rezoning is in the best interest of the public. This is done by looking at the property and area in which the use is to be located. The rezoning should comply to the policies for growth and development and the public services should be available. Mr. Barefoot stated the proposed rezoning has met the requirements. Chairman Greer closed the Public Hearing. Commissioner Davis asked if the proposed rezoning would violate the Land Use Plan? Planning Director Hayes reported the Land Use Plan encourages commercial nodes at predominant intersections. The size of a commercial node is not defined in the Land Use Plan. The Board of County Commissioners must make this decision. The Planning Staff views the proposed rezoning as an extension of the commercial node at the Eastwood Road/Military Cut-Off Road intersection, which would not be in violation of the Land Use Plan. Commissioner Davis asked the County Attorney if a public need or benefit must be found when considering a rezoning request? County Attorney Copley responded zoning was created to be sure proper uses are in proper areas. Commissioner Howell commented on hearing no opposition from adjacent property owners and stated the plan complies to the policies for growth and development in an area with similar businesses on adjacent properties. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Howell to approve rezoning approximately 4.5 acres on the east side of Military Cut-Off Road (1100 block) north of Landfall to B-1 Business from O-I Office and Institution as recommended by the Planning Board. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Davis Commissioner Howell Vice-Chairman Caster Voting Nay: Commissioner Birzenieks Chairman Greer A copy of "AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF ZONING AREA NO. 2 OF NEW HANOVER COUNTY, NORTH CAROLINA ADOPTED DECEMBER 15, 1969" is hereby incorporated as part of the minutes and is contained in Zoning Book I, Section 2, Page 41. CONTINUATION OF PUBLIC HEARING TO CONSIDER A REQUEST BY RAIFORD TRASK, JR. TO REZONE 85.04 ACRES ON THE EAST SIDE OF MILITARY CUT- OFF ROAD SOUTH OF LUCIA POINT AND NORTH OF LANDFALL TO O-I OFFICE AND INSTITUTION FROM R-15 AND R-20 RESIDENTIAL (Z-591, 2/97) UNTIL JUNE 2, 1997 Attorney George Rountree III, representing the petitioner Raiford Trask, Jr., requested the Board to continue the Public Hearing until June 2, 1997, in order to provide an opportunity for NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 880 Mr. Trask to submit changes or modifications in the original proposal that will be more compatible with the Land Use Plan and the future development of Military Cut-Off Road. Attorney Rountree reported the purpose for postponing the hearing until June was because he had a prior commitment on the date of May 5, 1997. Motion: Commissioner Howell MOVED, SECONDED by Vice-Chairman Caster to continue the Public Hearing to June 2, 1997. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Greer requested Attorney Rountree to inform Mr. Trask that the Board would not be amenable to continuing the Public Hearing past the June 2, 1997, date. PUBLIC HEARING TO CONSIDER AN APPEAL BY K&C CONTRACTING COMPANY TO REZONE 3.7 ACRES AT 6215 CAROLINA BEACH ROAD TO CONDITIONAL USE B-1 BUSINESS CD (B-1) FROM R-15 RESIDENTIAL FOR A RETAIL NURSERY AND SOD SALES FACILITY (Z-589, 2/97) Chairman Greer opened the Public Hearing and announced that a conditional use district requires issuance of a Special Use Permit; therefore, any persons wishing to testify must be sworn in by the Clerk to the Board. The following persons were sworn in: Dexter Hayes, Planning Director Steven Siegel Steven Coates Planning Director Hayes reported the Planning Board voted six (6) to zero (0) to recommend denial of the proposed rezoning. A majority of the members felt the proposed rezoning would increase strip commercial development along Carolina Beach Road. Also, there was concern about the impact of development on drainage in the area. He presented the following staff findings: General Requirement #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 site has direct access to a public street. B. The planned uses will generate little demand for water and sewer. Individual wells and septic tanks will be used. C. The site is located in the Myrtle Grove VFD District. General Requirement #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 pursuant to the Zoning Ordinance requirements has been submitted. B.Off-street parking is provided at a ratio sufficient to meet demand. C.One site identification sign of unknown dimensions is planned for the main entrance. A maximum sign area of 75 square feet is permitted due to the lot's frontage along a major road. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 881 D.The plan depicts planned land uses, traffic circulation, setbacks, location of fencing, location of plant areas, and the location of the support office and storage. E.The proposed rezoning, B-1 Business, permits wholesale and retail nurseries. F.Development of the project would be immediate upon approval of the rezoning. General Requirement #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. There is a wide variety of land uses in the area, including residential and non-residential activities. B. The frontage of the tract is occupied by a gift shop. C. The site has direct frontage along Carolina Beach Road and is in close proximity to the emerging commercialization around the intersection of Cathay Road and Carolina Beach Road. General Requirement #4: The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County based upon the following findings: A.Land use in the area is varied: scattered residential use on adjacent properties, a convenience food store, another gift shop, a day care center, a gas grill sales facility, a church and a non-conforming junk yard. B.Several large residential subdivisions are also located in the vicinity. These include Beau Rivage, Monterey Heights, Country Place, Battle Park, Laurel Ridge, Arrondale and Heritage Woods. Adjacent zoning includes R-15, Conditional Use B-1 and B-2. Chairman Greer inquired as to whether anyone from the public would like to comment. Mr. Steven Siegel, the attorney representing the applicant, Steven Coates, reported Mr. Steven Coates had recently purchased the property and stated due to being out of the country, he was not present at the Planning Board meeting. The subject property has been used as a retail site for eighteen years. If the rezoning is approved, the existing building will be renovated and used for a retail nursery. The aesthetics will be improved with landscaping and placement of an attractive sign on the site. The retail use will not create drainage problems because the plants will be sold, not grown and watered on the property. In closing, Attorney Siegel commented on the adjacent commercial uses and reported the proposed rezoning was the best use for the site. He requested the Board to approve the rezoning request. Mr. Otis Rogers, a property owner behind the site to be rezoned, advised he was not opposed to the rezoning if the following restrictions were made: (1) prohibit the cutting of trees from the hill that runs down to his property to avoid stormwater runoff; and (2) prohibit the storage of any business equipment in NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 882 the back of the building from the top of the hill back to his property. Attorney Siegel agreed to take the necessary steps to protect Mr. Rogers property from water runoff and prohibit the storage of business equipment beyond the hill. Chairman Greer closed the Public Hearing. Motion: Commissioner Howell MOVED to rezone the property to B-1 contingent upon the petitioner taking the necessary steps to see that no additional water runoff is generated on Mr. Rogers property. NO SECOND WAS RECEIVED AND THE MOTION FAILED. PUBLIC HEARING TO CONSIDER A REQUEST BY BERNARD MORGAN TO REZONE .83 ACRE AT 7702 ALEXANDER ROAD TO O-I OFFICE AND INSTITUTION FROM R-15 RESIDENTIAL Chairman Greer opened the Public Hearing. Planning Director Dexter Hayes reported the Planning Board voted six (6) to zero (0) to recommend approval of the petition as submitted. In support of this position, the Planning Board felt that establishing O-I Zoning would provide a better land use transition between Market Street and existing residential uses to the west and along Alexander Road. It was also noted that the adjacent property was similarly zoned. Chairman Greer asked if anyone from the public would like to comment. Mr. Pete Camak, representing Dr. Morgan, commented on adjacent commercial properties in the vicinity and reported the dental office would be an appropriate use for the site. Additional traffic would not be generated and an additional dental service would be provided to the area. The Board was requested to approve the rezoning as recommended by the Planning Board. Chairman Greer closed the Public Hearing. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to rezone .83 acre at 7702 Alexander Road to O-I Office and Institution from R-15 Residential as recommended by the Planning Board. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of "AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF ZONING AREA NO. 5 OF NEW HANOVER COUNTY, NORTH CAROLINA ADOPTED JULY 6, 1971, is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 5, Page 32. REQUEST BY PATRICIA HENDERSON TO REZONE 3.2 ACRES AT 813 PINER ROAD TO CONDITIONAL USE O-I OFFICE AND INSTITUTIONAL CD(O-I) FOR A REAL ESTATE OFFICE AND RESIDENCE FROM R-15 RESIDENTIAL (Z-593, 2/97) Chairman Greer opened the Public Hearing and announced that a conditional use rezoning requires issuance of a Special Use Permit; therefore, any persons wishing to testify must be sworn in by the Clerk to the Board. The following persons were sworn in: Dexter Hayes, Planning Director Patricia Henderson Planning Director Hayes reported the Planning Board voted five (5) to zero (0), with one abstention, to recommend approval of the petition and companion site plan as submitted. The Board noted that surrounding land uses, particularly the middle school and the NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 883 presbyterian church, made the property ideal for conditional use zoning. The fact that the site would be limited to a small real estate office lessened concerns about land use compatibility or increase in traffic. The following staff findings were presented: General Requirement #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 staff findings: A. The property has direct access to Piner Road, a public street. B. Both existing structures are served by individual wells and septic tanks. C. The site is located within the Myrtle Grove VFD District. D. The site is not located in the 100 year flood plain. General Requirement #2: The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance based upon the following staff findings: A. A site plan pursuant to the Zoning Ordinance has been submitted. B. Adequate area is available to accommodate required off- street parking. C. Site identification signage is limited to 12 square feet. The applicant plans to install a sign 2' x 6'. D. Development of the site would be immediate. E. Because the existing structure would be used for an office, no special land clearing that might impact existing trees and other vegetation would be needed. General Requirement #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 on the following findings: A. Property to the east is occupied by Myrtle Grove Middle School. B. Property to the southwest is occupied by Myrtle Grove Presbyterian Church. General Requirement #4: The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County based on the following findings: A. There are a variety of land uses in the area, including several churches, a school, scattered residential development, and a large shopping center. Chairman Greer inquired as to whether anyone from the public would like to comment. Ms. Pat Henderson, the petitioner, requested approval of the rezoning to use the site for a real estate office with development of the remaining property as sewer becomes available. She advised NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 884 that there was not a real estate office located to the north, east, or west for several miles around the area. Pictures were presented of the subject property and adjacent properties. The Board was requested to approve the conditional use zoning district since the area from Monkey Junction down Piner Road was in a transitional area. There being no further comments, Chairman Greer closed the Public Hearing. Commissioner Howell asked if the use changed, would the property remain zoned Conditional Use O&I? Planning Director Hayes responded the conditional use runs with the land. If the property was sold, the site would be limited to the use approved. Chairman Greer asked why a Special Use Permit was not issued for the proposed use in lieu of a Conditional Use District? Planning Director Hayes reported the conditional use process avoids the issuance of too many Special Use Permits. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Howell to rezone 3.2 acres at 813 Piner Road to Conditional Use O-I Office and Institution CD(O-I) for a real estate office and residence from R-15 Residential. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Davis Commissioner Howell Vice-Chairman Caster Voting Nay: Chairman Greer A copy of "AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF ZONING AREA NO. 4 OF NEW HANOVER COUNTY, NORTH CAROLINA ADOPTED APRIL 7, 1971," is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 4, Page 51. Chairman Greer asked Ms. Henderson if she concurred with the findings of fact presented by the Planning Director. Ms. Henderson agreed with the findings of fact as presented. Motion: Commissioner Howell MOVED, SECONDED by Vice-Chairman Caster to grant a Special Use Permit for use of the site as a real estate office based upon the findings of fact and evidence presented 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 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 AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Davis Commissioner Howell Vice-Chairman Caster NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 885 Voting Nay: Chairman Greer A copy of the Special Use Permit is hereby incorporated as a part of the minutes and is contained in SUP Book II, Page 19. PUBLIC HEARING TO CONSIDER A REQUEST BY PEMBROKE NASH TO CLOSE THE SOUTHERN SEGMENT OF CENTRAL AVENUE LOCATED ON THE SOUTH SIDE OF BEECH STREET IN THE SUMMER REST SUBDIVISION (SC-70, 2/97) Chairman Greer opened the Public Hearing. Planning Director Hayes reported the Planning Staff was not opposed to closing the southern segment of Central Avenue located on the south side of Beech Street in the Summer Rest Subdivision. He reported the petitioner was not present; however, the adjacent landowners had been notified and did not have a problem with closing this portion of the road. The Planning and Engineering staffs have no concerns about the road closing. Chairman Greer inquired as to whether anyone from the public would like to comment. No remarks were received. Chairman Greer closed the Public Hearing. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to approve closing the southern segment of Central Avenue located on the south side of Beech Street in the Summer Rest Subdivision. 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 XXIII, Page 35. ADOPTION OF A RESOLUTION OF INTENT TO CONSIDER CLOSING A PORTION OF BURKE AVENUE LOCATED SOUTH OF EASTWOOD ROAD AND EAST OF PAVILION PLACE (SC-71, 2/97) Planning Director, Dexter Hayes, requested the Board to adopt a Resolution of Intent to close a portion of Burke Avenue, beginning south of Eastwood Road and running approximately 550 feet south. Burke Avenue is located 250 feet east of Pavilion Place. There would be a 20 foot reduction in the 50 foot right-of-way to prevent the destruction of several majestic oak trees. The Public Hearing will be scheduled on March 24, 1997, for the Board to consider the road closing request. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Howell to adopt a Resolution of Intent to close a portion of Burke Avenue located South of Eastwood Road and East of Pavilion Place. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the Resolution of Intent is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. MEETING CONVENED FROM REGULAR SESSION TO HOLD A MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Chairman Greer convened from Regular Session at 10:58 P.M. until 11:05 P.M. to hold a meeting of the Water and Sewer District. ADDITIONAL ITEMS REQUEST FOR CONTINUATION OF EMERGENCY PROCLAMATION Assistant County Manager, Dave Weaver, requested the Board to continue the Emergency Proclamation for 180 days to allow officials to access private property since the U. S. Natural Resources NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 886 Conservation Service was still performing stream debris removal and the Dawson Engineering firm will need access to private property while performing the Pages Creek Watershed Study. Chairman Greer expressed concern for public officials accessing private properties six months later, and he recommended extending the proclamation to September 4, 1997, in lieu of the proposed 180 days. Motion: Chairman Greer MOVED, SECONDED by Commissioner Birzenieks to extend the Emergency Proclamation until September 4, 1997. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXIII, Page 35. AWARD OF CONTRACT #97-0329 TO DAWSON ENGINEERING COMPANY OUTLINING THE SCOPE OF WORK TO BE PERFORMED IN THE PAGES CREEK WATERSHED STUDY Assistant County Manager Weaver reported the total cost of the Pages Creek Watershed Study would be less than $80,000 with the possibility of receiving grant funding for the project. In order to be eligible to receive a grant, engineering services need to be performed. He requested the Board to approve the contract with the scope of work presented contingent upon minor changes that may be needed to complete the work. Commissioner Birzenieks commented on the importance of moving forward with the study and he requested Assistant County Manager Weaver to move as quickly as possible with performance of the study. Discussion was held on the scope of work and the cost involved. Mr. Dan Dawson advised that after holding four meetings, the scope of work was prepared to target the necessary items needed to perform the study. Chairman Greer stressed the importance of presenting a study that will serve as an outline to study other watersheds. Assistant County Manager Weaver reported the scope of work presented will provide a framework that can be used to study other watersheds. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to approve the contract with the scope of work as presented in an amount not to exceed $79,650. Upon vote, the MOTION CARRIED UNANIMOUSLY. WAIVER OF TIP FEES FOR STREAM DEBRIS REMOVAL BY THE U. S. NATURAL RESOURCES CONSERVATION SERVICE Assistant County Manager Weaver requested waiving the tip fees for stream debris removal by the U. S. Natural Resources Conservation Services. He advised the County should receive reimbursement of the $21,500 from FEMA. Chairman Greer responded the debris removal process should not be held up because of the tip fees; however, he felt that FEMA should reimburse the County for this expense. Motion: Chairman Greer MOVED, SECONDED by Vice-Chairman Caster to waive the tip fees for stream debris removal by the U. S. Natural Resources Conservation Service. Upon vote, the MOTION CARRIED UNANIMOUSLY. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 887 AWARD OF CONTRACT TO WIRTHLIN WORLDWIDE FOR PERFORMANCE OF A PUBLIC OPINION SURVEY ON THE PROPOSED SCHOOL BOND REFERENDUM Deputy County Manager Atkinson reported that County Manager O'Neal had contacted Wirthlin Worldwide about the cost of conducting the public opinion survey on the proposed school bond referendum. The following cost options were presented: Option 1 Benchmark Survey $18,706 Brushfire Survey 7,461 Five Focus Groups 19,875 Total Investment $46,042 Option 2 Benchmark Survey $18,706 Brushfire Survey 7,461 Four Focus Groups 16,000 Total Investment $42,167 Option 3 Benchmark Survey $18,706 Four Focus Groups 16,000 Total Investment $34,706 Discussion was held on the importance of the Brushfire Survey. Deputy County Manager Atkinson reported this survey was a small telephone survey conducted near the referendum date to clarify any last minute confusion among the voters. Commissioner Birzenieks asked if the Board determined at a later date, the Brushfire Survey was needed, would there be any problem with amending the contract to cover this item? Deputy County Manager Atkinson responded he was sure that Wirthlin Worldwide would be glad to amend the contract. Commissioner Howell inquired as to whether clarification had been received from Wirthlin Worldwide regarding travel expenses? Deputy County Manager Atkinson responded no formal contract had been received; however, the company would be reimbursed according to the New Hanover County travel policy. He advised a local firm would be performing a large portion of the work. Commissioner Birzenieks commented on discussing this matter with the local firm and stated travel will be minimized. Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Howell to enter into a contract with Wirthlin Worldwide in the amount of $34,706 (Option 3) to perform a public opinion survey. Commissioner Howell inquired as to whether a list of questions had been prepared by Wirthlin Associates for the survey? Deputy County Manager Atkinson reported Wirthlin Associates would meet with survey design groups to prepare the survey questions. Chairman Greer called for a VOTE ON THE MOTION to award the contract to Wirthlin Worldwide in the amount of $34,706. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Howell Vice-Chairman Caster Chairman Greer NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 888 Voting Nay: Commissioner Davis Vice-Chairman Caster commented on attending a long-range building meeting for the New Hanover County School System and reported discussion was held on the lack of funding provided by former Boards of County Commissioners. Vice-Chairman Caster assured the group that New Hanover County had increased the funding each year in a sizeable amount considering the other responsibilities of the County. Further discussion was held on when to hold the bond referendum. It was the consensus of the Board of Education that the referendum should be held in June. The members indicated that if the referendum was held in the fall, it should be held separately in November instead of being placed on the ballot for the City of Wilmington election in October. The Commissioners discussed the importance of selecting the size of the school bond issue and the date for holding the bond referendum. Commissioner Birzenieks advised the Board would not be able to determine the size of the bond issue until Wirthlin Worldwide completed the survey. Chairman Greer stated he felt time was needed to perform the survey, and he recommended holding the bond referendum in the fall. Consensus: It was the consensus of the Board to inform the Board of Education that the bond referendum would be held in the fall. DISCUSSION OF FALCON CABLE SERVICE Vice-Chairman Caster reported on meeting with officials of Falcon Cable and stated that Sam Wilson, the regional manager, had assured him the cable service would be improved. It appears that additional staff has been hired to provide a better customer service. County Attorney Copley reported Falcon Cable would be making a presentation to the Board on March 24, 1997. Once the presentation has been presented, the officials will probably request renewal of the franchise. DISCUSSION OF RESPONSE TO MS. LYNDA HARRILL Vice-Chairman Caster inquired as to whether a response had been forwarded to Ms. Lynda Harrill regarding complaints about the Inspections Department. County Attorney Copley reported Staff was working on the letter and a response should be mailed after the County Manager returns next week. Vice-Chairman Caster urged Staff to move forward with a response. DISCUSSION OF FILM INDUSTRY Chairman Greer reported the Southeast Film Committee had withdrawn its offer to assist the Wilmington Regional Film Commission. Vice-Chairman Caster asked if Mr. Frank Capra, Jr. had called to be placed on the agenda for discussion of this matter. Deputy County Manager Atkinson reported Mr. Capra had not contacted the County. Vice-Chairman Caster reported he felt this issue should be discussed and stated he would have Mr. Capra call the County Manager's office to be placed on the agenda for March 24, 1997. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 889 APPROVAL OF HIRING THE FIRM OF ROBINSON, BRADSHAW, & HINSON, P.A. OF CHARLOTTE, NORTH CAROLINA, AS THE BOND COUNSEL FOR NEW HANOVER COUNTY Vice-Chairman Caster reported on the importance of hiring a firm in North Carolina in lieu of using a firm from New York. He stated the firm of Robinson, Bradshaw, & Hinson, P.A. of Charlotte, North Carolina, had presented a proposal requesting the Board to consider allowing their firm to provide bond counsel services. He reported the firm was a fine organization, and he recommended placing this item on the next agenda since the County was in the process of preparing a school bond issue. Commissioner Birzenieks recommended moving forward with hiring the firm of Robinson, Bradshaw, & Hinson, P.A. and stated after meeting with the firm, he felt comfortable with their experience and qualifications. He stated he was assured that officials would be available to County staff upon demand. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to hire the firm of Robinson, Bradshaw & Hinson, P.A. of Charlotte, North Carolina, as the bond counsel for New Hanover County. Commissioner Davis expressed concern about no fees being presented in the proposal and the amount of time needed for a bond counsel to learn the details about New Hanover County. Deputy County Manager Atkinson reported the fees should be a little less with the new firm. He requested the Board to allow James LaPenn with LeBoeuf, Lamb, Greene & MacRae to complete the existing bond issues. This would allow the County to make a clean break and begin working with Mr. Edwin F. Lucas III with Robinson, Bradshaw & Hinson for the school bond referendum. Commissioner Davis asked if other companies should be provided an opportunity to present a proposal. Deputy County Manager Atkinson advised the Board could submit a Request for Qualifications; however, this process was not required by the State Statutes. Amended Motion: Vice-Chairman Caster AMENDED THE MOTION, SECONDED by Commissioner Birzenieks to hire the firm of Robinson, Bradshaw & Hinson as bond counsel for New Hanover County to become effective with the school bond referendum. The firm of LeBoeuf, Lamb, Greene & MacRae are to complete the existing bond issues. Upon vote, the MOTION CARRIED AS FOLLOWS: Voting Aye: Commissioner Birzenieks Commissioner Howell Vice-Chairman Caster Chairman Greer Voting Nay: Commissioner Davis NEW HANOVER REGIONAL MEDICAL CENTER FINANCIAL REPORT Commissioner Birzenieks reported the financial report of New Hanover Regional Medical Center indicated a profit of more than $20 million during the year ended September 30, 1996. Unfortunately, the report will be released to the media before being forwarded to the Board of County Commissioners. After discussion, Commissioner Birzenieks advised he would request the Finance Committee to release the report to the Board of County Commissioners at the same time the report was released to the press. NEW HANOVER COUNTY BOARD OF COMMISSIONERSBOOK 25 REGULAR MEETING, MARCH 10, 1997PAGE 890 DISCUSSION OF ROAD CONNECTION BETWEEN PROVIDENCE AND TIMBER CREEK SUBDIVISIONS County Attorney Copley requested direction from the Board regarding the failure of Hall Painter to complete the road connection between Providence and Timber Creek Subdivisions as required in the 1987 subdivision approval process. The residents of both subdivisions do not want the road connector and have stated that gates will be placed at the entrance of the private roads. Assistant County Attorney, Kemp Burpeau, reported the attorney involved in the case was not willing to provide an additional access for emergency responses. Planning Director Hayes reported failure to construct the road connection was a violation of the original subdivision plan. Consensus: After discussion of the need for the original plan to be upheld, it was the consensus of the Board for the Legal Department to proceed with a lawsuit against Hall Painter for failure to complete the road connection. DISCUSSION OF REGULATIONS REGARDING THE COLLOCATION OF COMMUNICATION TOWERS County Attorney Copley advised she would be glad to review the current Zoning Ordinance to see if the regulations should be amended to address the collocation requirements. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Birzenieks to request the Legal Department to review the ordinance and prepare a recommendation to require the petitioner to document that an effort has been made for collocation of the tower. Upon vote, the MOTION CARRIED UNANIMOUSLY. ADJOURNMENT Chairman Greer adjourned the meeting at 12:15 P.M. Respectfully submitted, Lucie F. Harrell Clerk to the Board