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2009-10-05 Regular MeetingNEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 682 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, October 5, 2009, at 6:00 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, NC. Members present were: Chairman Ted Davis, Jr.; Vice-Chairman Jason R. Thompson; Commissioner Robert G. Greer; Commissioner William A. Caster; Commissioner Jonathan Barfield, Jr.; County Attorney Wanda M. Copley; Clerk to the Board Sheila L. Schult; and Assistant County Manager Andre Mallette. Chairman Davis called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Pastor Joey Canady, Kure Beach First Baptist Church, gave the invocation. Commissioner Barfield 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 remove any item from the Consent Agenda. Hearing no comments, Chairman Davis called for a motion to approve the items on the Consent Agenda. Motion: Vice-Chairman Thompson MOVED, SECONDED by Commissioner Caster, to approve the items on the Consent Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA Approval of Minutes  Governing Body The Commissioners approved the minutes from the Regular Session meeting held on September 21, 2009 as presented by the Clerk to the Board. Approval of Second Reading Request to Award a Solid Waste Franchise to Job-Site Container Company, Inc.  Legal Department The Commissioners, pursuant to New Hanover County Code Section 44-55, approved the second reading request to award a solid waste franchise to Job-Site Container Company, Inc. The initial franchise period will run for seven years. A copy of the solid waste franchise award is available for review in the Legal Department. Adoption of Budget Ordinance Amendments  Budget Department The Commissioners adopted the following Budget Ordinance Amendments for fiscal year ending June 30, 2010: 10-057 - Senior Resource Center 2010-19 - Finance - Room Occupancy Tax Copies of the budget ordinance amendments are hereby incorporated as part of the minutes and are contained in Exhibit Book XXXII, Page 19.1. REGULAR ITEMS OF BUSINESS ADOPTION OF PROCLAMATION DECLARING OCTOBER 2009 AS DOMESTIC VIOLENCE IN NEW HANOVER COUNTY AWARENESS MONTH Chairman Davis reported that the Board has been requested to declare October 2009 as Domestic Violence Awareness Month in New Hanover County. Commissioner Caster read the proclamation into the record and moved for adoption. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Barfield, to adopt the proclamation declaring October 2009 as Domestic Violence Awareness Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. Shanta Nowell, Children's Advocate with Domestic Violence Shelter and Services, was present to receive the proclamation. A copy of the proclamation is hereby incorporated as part of the minutes and is contained in Exhibit Book XXXII 19.2. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 683 PUBLIC HEARING AND APPROVAL OF SPECIAL USE PERMIT REQUEST BY PENNINGTON LAW FIRM ON BEHALF OF JAMES D. PAGE, JR. TO ALLOW A 199-FOOT WIRELESS CELLULAR TOWER TO BE LOCATED AT 8104 SIDBURY ROAD IN AN R-15 RESIDENTIAL ZONING DISTRICT (S-593, 7/09) Chairman Davis opened the Public Hearing and announced that the special use process requires a quasi- judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. He requested all persons who signed in to speak or who want to present testimony to step forward to be sworn in. The following persons were sworn in: Jane Daughtridge Chris OKeefe Gary C. Pennington James Page, Jr. Lisa Good William Southerland E.W. Fredrickson William McKenzie Julie Wilsey Senior Planner Jane Daughtridge reported that Gary C. Pennington, Pennington Law Firm, on behalf of James D. Page, Jr., is requesting a special use permit to allow a 199-foot wireless cellular tower to be located at 8104 Sidbury Road in an R-15 Residential Zoning District and presented a slide overview of the request. In response to concerns raised at the Planning Board meeting the applicant has revised the proposed location further south on other property owned by Mr. Page. Planning Director OKeefe read the findings of facts into the record and continued reporting that at the Planning Boards August 3, 2009 meeting, they voted 3-2 to recommend approval of the permit with a condition that the tower be moved south as far as possible away from the Southerland property. Four people spoke in opposition to the tower, expressing a wide range of concerns for possible health and safety impacts and for possible wildlife, air traffic and archeological disturbance. The Petitioner has responded by moving the location of the cell tower more than 100 feet to the south of the original proposal. Staff confirmed with Planning Board member Andy Heath that he would now vote to recommend the project with the revised cell tower location. Staff was unable to reach the other Planning Board member that voted in opposition to the request to see if she would now support the request with the revised location of the cell tower. With the revised location staff feels the project will be in harmony with the area and supports a finding that the use is in general conformity with the Countys plan of development. The proposed new location of the tower is 360 feet from the nearest residential structure which is substantially more than the required distance. Therefore, the new evidence in the record supports a finding that the use meets the specifications of the ordinance. In response to Board questions, Planning Director OKeefe clarified that the staff recommendation is a suggestion for the Boards consideration. In response to Board questions, Attorney Gary C. Pennington confirmed that they agree with the findings of facts as presented and desires to proceed with the request confirming that he understands that if the request is denied it cannot be brought back before the Board for a period of one year. Mr. Pennington presented a PowerPoint presentation of the request stating that the location of the cell tower has been moved 191 feet to the south to address concerns of some of the neighbors. All setback requirements will be met or exceeded and all Federal regulations will be met. Co-location on two existing towers has been examined and found not to be acceptable as it would not meet the coverage objective of providing coverage to the Sidbury Road area. He requested the Board approve the request as it meets County requirements. William McKenzie stated that he is a North Carolina Certified Real Estate Appraiser and his review of the request has found that the proximity of the proposed 199-foot monopole cell tower does not have any impact on the adjoining property values. Chairman Davis asked if anyone from the public wished to speak in opposition to the request. William Southerland, 8108 Sidbury Road, voiced his concern about locating the cell tower near his residence citing safety and radiation health issues. E.W. Fredrickson, 8053 Sidbury Road, stated his opposition to the location of the cell tower due to health concerns for humans and wildlife. In rebuttal comments, Mr. Pennington reported that FCC documentation has been shared with Mr. Southerland concerning the safety of cellular towers and stated that all Federal regulations will be compiled with. He stated that he objects to the photographs presented by Mr. Southerland as they are not to scale. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 684 In rebuttal comments, Mr. Southerland stated that he is a Verizon customer and does not think that the cell tower is needed. In rebuttal comments, Mr. Fredrickson stated that cell towers are not safe for birds and interfere with their migration patterns. In response to Board questions, Planning Director OKeefe confirmed that there is not an appropriate tower in the vicinity for co-location use. In response to Board questions, Mr. Pennington stated that they have no objection to installing the appropriate light on the cellular tower. There being no further comments, Chairman Davis closed the Public Hearing and requested direction from the Board. Motion: Vice-Chairman Thompson MOVED, SECONDED by Commissioner Barfield, to approve the special use request by Pennington Law Firm, on behalf of James D. Page, Jr. to locate a 199-foot wireless cellular tower at 8104 Sidbury Road in an R-15 Residential Zoning District based on the evidence presented and the findings of facts concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) 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 with the condition that a light per FAA approval be installed on the cellular tower. In response to Board discussion and questions, Wilmington International Airport Deputy Director Julie Wilsey was duly sworn in and reported that the Petitioner will need to submit Form 74-60 to the FAA requesting to erect a tower. The FAA will conduct a review of the project and respond with the appropriate recommendations. Amended Motion: Vice-Chairman Thompson MOVED, SECONDED by Commissioner Barfield, to approve the special use request by Pennington Law Firm, on behalf of James D. Page, Jr. to locate a 199-foot wireless cellular tower at 8104 Sidbury Road in an R-15 Residential Zoning District based on the evidence presented and the findings of facts concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) 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 with the condition that Form 74-60 be submitted to the FAA and the recommendations of the FAA be adhered to. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the order granting the Special Use Permit and listing the findings of facts is hereby incorporated as a part of the minutes and is contained in SUP Book IV, Page 27.3. PUBLIC HEARING AND APPROVAL OF REQUEST BY NEW HANOVER COUNTY AIRPORT AUTHORITY TO REZONE APPROXIMATELY 1.96 ACRES OF PROPERTY LOCATED AT 1809, 1821, 1825 AND 1829 FARLEY DRIVE FROM AR AIRPORT RESIDENTIAL TO AI AIRPORT INDUSTRIAL (Z-898, 09/09) Chairman Davis opened the Public Hearing and requested staff to make the presentation. Senior Planner Jane Daughtridgereported that the New Hanover County Airport Authority is requesting to rezone approximately 1.96 acres of property located at 1809, 1821, 1825 and 1829 Farley Drive from AR-Airport Residential to AI-Airport Industrial and presented a slide overview of the request. The vacant lots were recently acquired by the Airport and are located inside the fenced airport property. Planning Director Chris OKeefe reported that the AI Airport Industrial District is described as one that provides for indoor manufacturing and distributive type operations that are compatible with airport facilities, generally protecting the lives and property of the users of the airport and occupants in the vicinity. The district is designed to prevent destruction or impairment of the utility of the airport and the publics investment in it. Industrial uses as allowed in the AI District would be possible in this location if the lots are rezoned as proposed. At the Planning Boards September 3, 2009 meeting, they voted 6-0 to recommend approval of the request with no one from the public speaking on this item. Staff has received one telephone inquiry asking what the impact of the rezoning might be on remaining residents along Farley Drive. Staff recommends approval finding that the proposed zoning pattern is reasonable and consistent with the Land Use Plan and that the countys development standards would address any buffering or other requirements if development occurs. In response to Board questions Wilmington International Airport Deputy Director Julie Wilsey confirmed that they desire to proceed with the request and understand that if the request is denied it cannot be brought back before the Board for a period of one year. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 685 Chairman Davis asked if the Petitioner wished to speak on the request. The Petitioner, Wilmington International Airport Deputy Director Julie Wilsey reported that the Airport purchased the properties and demolished the houses and is now requesting the property to be rezoned to AI Airport Industrial for consistency with all the adjoining airport property. This zoning will prohibit residences from being rebuilt so close to the runway. She requested the Board approve the request. Chairman Davis asked if anyone from the public wished to speak on the request. There being no comments, Chairman Davis closed the Public Hearing and requested direction from the Board. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Greer, to approve the request by the New Hanover County Airport Authority to rezone approximately 1.96 acres of property located at 1809, 1821, 1825 and 1829 Farley Drive from AR Airport Residential to AI Airport Industrial as presented finding that the request is consistent with the purposes and intent of the Transition land classification and land use policies 4.2 and 19.5 adopted in the 2006 Land Use Plan and reasonable and in the public interest to allow transition of land use since the property has been acquired by the Airport Authority and no longer serves a residential purpose. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AIRPORT AREA OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON OCTOBER 4, 1976, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Airport Section, Page 19.1. PUBLIC HEARING AND APPROVAL OF REQUEST BY STEVE HALL, ON BEHALF OF H.L. SMITH, DAN INMAN, AND LAURENS C. DAVIS TO REZONE APPROXIMATELY 2.53 ACRES OF PROPERTY LOCATED AT 2600, 2604, 2608, AND 2612 CASTLE HAYNE ROAD AND 3512 AND 3516 NORTH KERR AVENUE FROM R-20 RESIDENTIAL AND AR AIRPORT RESIDENTIAL TO B-1 NEIGHBORHOOD BUSINESS DISTRICT (Z-899, 09/09) Chairman Davis opened the Public Hearing and requested staff to make the presentation. Senior Planner Jane Daughtridgereported that Steve Hall with Maus, Warwick, Matthews & Co., on behalf of H.L. Smith, Dan Inman, and Laurens C. Davis are requesting to rezone approximately 2.53 acres of property located at 2600/2604/2608 and 2612 Castle Hayne Road and 3512 and 3516 North Kerr Avenue from R-20 Residential and AR Airport Residential to B-1 Neighborhood Business District and presented a slide overview of the request. The properties are accessed from Castle Hayne Road and North Kerr Avenue. Both roadways are arterials and the intersection is signalized. Traffic counts in the area show about 18% decrease in annual average daily traffic between 2006 and 2007. Castle Hayne Road has a 2007 LOS of E from the intersection northward and F from the intersection southward, meaning the road is operating at or above its design capacity with traffic congestion at peak hours. No traffic counts or level of service was available for North Kerr Avenue in this location. Planning Director Chris OKeefe reported that current zoning of most of the property is R-20 low density residential along Castle Hayne Road and most of Kerr Avenue, with one parcel zoned AR Airport Residential. B-1 Neighborhood Business zoning is present to the east of these properties, B-2 Highway Business District lies south of the area and SC Shopping Center district is across Castle Hayne Road to the west. This proposal includes six lots on the corner of Castle Hayne Road and North Kerr Avenue. There are four vintage dwelling units on the six lots. One of the dwellings is being condemned. All of the other corners at this intersection have transitioned to commercial use. The B-1 commercial district is described as one that provides for convenient shopping of necessity goods and personal services required to serve a neighborhood. A Traffic Impact Analysis will be required for any development that generates more than 100 peak hour trips. Traffic will obviously increase if the uses transition to commercial, but the location at a signalized intersection will provide managed flow of the increase. Furthermore, NCDOT will likely require improvements as needed when driveway permits are issued. At the Planning Boards September 3, 2009 meeting, they voted 6-0 to recommend approval of the request with no one from the public speaking on this item. Staff feels the request is reasonable and consistent with the Land Use Plan. Chairman Davis asked if the Petitioner would like to speak on the request. In response to Board questions, Steve Hall, on behalf of H.L. Smith, Dan Inman, and Laurens C. Davis, confirmed that they desire to proceed with the request and that they understand that if the request is denied it cannot be brought back before the Board for a period of one year. Mr. Hall offered to answer any Board questions. In response to Board questions, Mr. Hall confirmed that currently there are no contracts or letter of intents on any of the subject properties. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 686 In response to Board questions, Buck OShields stated that he was present in support of the rezoning request. Chairman Davis asked if anyone from the public wished to speak on the request. There being no comments, Chairman Davis closed the Public Hearing and requested direction from the Board. Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Thompson to approve the request by Steve Hall with Maus, Warwick, Matthews & Co., on behalf of H.L. Smith, Dan Inman, and Laurens C. Davis to rezone approximately 2.53 acres of property located at 2600, 2604, 2608, and 2612 Castle Hayne Road and 3512 and 3516 North Kerr Avenue from R-20 Residential and AR Airport Residential to B-1 Neighborhood Business District as presented finding that the request is consistent with the purposes and intent of the Transition land classification and the associated land use policy 4.2 adopted in the 2006 Land Use Plan and reasonable and in the public interest to allow transition of land use from residential to commercial use in proximity to a signalized arterial intersection, completing a commercial node where the other three corners are already developed with commercial uses. Planning Director OKeefe requested that the Board include in the B-1 rezoning request the road right-of- way in front of the subject properties. Amended Motion: Commissioner Caster MOVED, SECONDED by Vice-Chairman Thompson to approve the request by Steve Hall with Maus, Warwick, Matthews & Co., on behalf of H.L. Smith, Dan Inman, and Laurens C. Davis to rezone approximately 2.53 acres of property located at 2600, 2604, 2608, and 2612 Castle Hayne Road and 3512 and 3516 North Kerr Avenue from R-20 Residential and AR Airport Residential to B-1 Neighborhood Business District as presented finding that the request is consistent with the purposes and intent of the Transition land classification and the associated land use policy 4.2 adopted in the 2006 Land Use Plan and reasonable and in the public interest to allow transition of land use from residential to commercial use in proximity to a signalized arterial intersection, completing a commercial node where the other three corners are already developed with commercial uses to include the road right-of-way in front of the subject properties. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 10A AND THE AIRPORT AREA OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON JULY 1, 1974 AND OCTOBER 4, 1976, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Section 10A, Page 31 and Zoning Book II, Airport Section, Page 19.2. APPROVAL OF REQUEST FOR ADDITIONAL ROOM OCCUPANCY TAX FUNDS FOR BEACH RENOURISHMENT FOR CAROLINA AND KURE BEACHES Assistant County Manager Dave Weaver reported that $1.5 million in additional Federal funds have been provided for beach renourishment projects for Carolina and Kure Beaches. In order to leverage the additional Federal funds the Port, Waterway and Beach Commission recommend that the County authorize the use of Room Occupancy Tax funds in the amount of $432,692 and advance the States match in the amount of $432,692 from Room Occupancy Tax funds. It is the expectation that the County will be reimbursed for the States portion of advanced funds. The participation of the State in this and future projects is being reduced from 75% State/25% Local to 50% State/50% Local. The additional funds from the County and the State will help match the available Federal funding which will help bring the scope of the proposed project nearer to the design scope. County staff will be present at the bid opening and contract negotiations. Richard Catlin, Chairman of the Port, Waterway, and Beach Commission confirmed that the Port, Waterway and Beach Commission made the recommendation as presented and reported that the additional funds will increase the scope of the project for Carolina and Kure Beaches bringing it more in line with the original scope. Hearing no further discussion, Chairman Davis requested direction from the Board. Motion: Commissioner Caster MOVED, SECONDED by Commissioner Barfield, to contribute an additional $432,692 for the Countys portion and advance an additional $432,692 for the States portion from Room Occupancy Tax Funds to increase the scope of the Carolina and Kure Beaches renourishment projects. Upon vote, the MOTION CARRIED UNANIMOUSLY. NON-AGENDA ITEMS Chairman Davis announced that time had been reserved to allow the public to present an item that was not listed on the regular agenda. He requested all persons speaking to limit their remarks to three minutes. No items were presented. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 31 REGULAR MEETING, OCTOBER 5, 2009 PAGE 687 ADJOURNMENT There being no further business, Chairman Davis requested a motion to adjourn the meeting. Motion: Commissioner Greer MOVED, SECONDED by Commissioner Caster, to adjourn the meeting. Upon vote, the MOTION CARRIED UNANIMOUSLY. Chairman Davis adjourned the meeting at 7:36 p.m. Respectfully submitted, Sheila L. Schult Clerk to the Board Please note that the above minutes are not a verbatim record of the New Hanover County Board of Commissioners meeting. The entire proceedings are available for review and check-out at all New Hanover County Libraries.