01 JANUARY 2019 PB MINUTES - APPROVED
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Minutes of the
New Hanover County Planning Board
January 10, 2019
The New Hanover County Planning Board held a regular meeting on Thursday, January 10, 2019 at
6:00 p.m. In the André Mallette Training Facility of the New Hanover County Government Center,
Wilmington, NC to hold public hearings.
Planning Board Present: Staff Present:
Jordy Rawl, Chairman Wayne Clark, Planning & Land Use Director
Donna Girardot, Vice-Chairwoman Ken Vafier, Planning Manager
Ernest Olds Brad Schuler, Current Planner
Jeffrey Petroff Sharon Huffman, Deputy County Attorney
Allen Pope
Edward “Ted” Shipley, III
Absent:
Paul Boney
Chairman Jordy Rawl opened the meeting and welcomed the audience to the public hearing.
Planning Manager Ken Vafier led the reciting of the Pledge of Allegiance.
Chairman Jordy Rawl reviewed the procedures for the meeting and the format for the public
hearings.
Item 1: Rezoning Request (Z18-19) – Request by Rountree Losee LLP on behalf of the property
owner, Hilton Properties Limited Partnership, to rezone approximately 63.02 acres of land located
in the 4100 block of Castle Hayne Road, from RA, Rural Agricultural District, to (CUD) I-2,
Conditional Use Heavy Industrial District, and for a special use permit in order to develop a high
intensity mining operation.
At the request of Vice-Chairwoman Girardot, Chairman Jordy Rawl asked Deputy County Attorney
Sharon Huffman to provide a brief explanation of the conditional use zoning hearing process.
Deputy County Attorney Sharon Huffman stated that this request required a quasi-judicial hearing,
which meant that all speakers must be sworn in. While each side, in support and in opposition, was
usually limited to fifteen minutes for presentations and five minutes of rebuttal, because of the
number of people present, time would be increased to thirty minutes for each side for presentation
and fifteen minutes each of rebuttal. Attorney Steve Coggins was representing the applicant, and
he and his team would have thirty minutes to present their case. The opposition would also have
thirty minutes to present. The first speaker signed up in opposition was an attorney speaking on
behalf of one of the adjoining property owners. He had submitted several documents earlier that
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day to planning staff, the Planning Board, and the applicant’s attorney. He indicated that he would
speak for approximately five minutes, so 25 minutes would be available for others to speak. Noting
that 25 to 30 people had signed up, she advised that they should consider whether they really
wanted to speak and try not to repeat what somebody else had said because each person would be
limited to three minutes. She noted that, if time was limited, someone could ask everyone opposed
to it to stand up.
Attorney Huffman explained the application was for a rezoning and a special use permit and would
require be a two-pronged hearing. The Planning Board would consider the rezoning request first. If
the rezoning were approved, the Board would then consider the special use permit. Because this
was a two-pronged hearing, it wouldn’t have the same rules completely or the same process. If it
were a special use permit only, it would have very stringent rules as to who could speak. Only people
who had standing could speak, which means that that someone living a half-mile away probably
didn’t have standing. Deputy County Attorney Huffman stated the first process would be the
rezoning, so anyone had standing and could speak. There were only certain things the Planning
Board can consider, so she advised speakers to try to provide facts they felt were meaningful. Even
though the rezoning was a legislative decision, since this was a two-pronged matter, it would be
treated as quasi-judicial, which meant that speakers will be sworn in, and the Planning Board would
determine whether they should consider the information provided. She cautioned that it was
unlikely that personal opinions beyond the scientific evidence given would have a lot of meaning to
the Planning Board. In response to inquiries from the audience, she explained that the first part of
the process would be a legislative hearing, and the Planning Board would consider the request and
make a recommendation to the county commissioners.
Witnesses were sworn in by Deputy County Attorney Sharon Huffman.
Staff Presentation
Chairman Rawl recognized Current Planner Brad Schuler of the New Hanover County Planning &
Land Use Department to present the application.
Current Planner Schuler provided information pertaining to location, land classification, access, level
of service and zoning; and showed maps, aerials, and photographs of the property and the
surrounding area as included in the staff report.
He presented that this was a new application proposing to rezone 63 acres located in Castle
Hayne from RA, Rural Agricultural, to I‑2, Heavy Industrial, in order to develop a sand mining
operation. An application for a mine at this location was previously considered by the planning
board in early 2014. That application was ultimately continued by the Planning Board and
withdrawn by the applicant.
Mr. Schuler described the subject property and surrounding area. To the west, north and east of
the property was mostly undeveloped land zoned RA, Rural Agricultural, and to the south of the
property was General Electric (GE), which was zoned I‑2, Heavy Industrial. The closest residential
developments were the River Bluffs and Wooden Shoe subdivisions, and the homes along Indian
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Corn Trail and Trail Oaks Drive were located approximately a mile and a half from the proposed
mining operation.
The mining operation would be accessed by Sledge Road, a private, unpaved road located on
property also owned by the applicant. The road was approximately two miles in length and had
two gates along it, one located at the entrance of the property at Castle Hayne Road. About a
half‑mile of the road ran along the Wooden Shoe subdivision, which consisted of about 70 lots.
Nine lots had existing single‑family dwellings on them abutting Sledge Road, and an equestrian
facility directly abutted the road as well. There was currently light vegetation between the road
and the adjacent homes. The portion of the road that abutted the homes was within an area of
the property approximately 60 feet in width. The road was located approximately in the middle
of that 60 feet, and there was a distance of about 20 feet from the edge of the road to the
property line of the homes.
The site plan submitted with the application showed Sledge Road and the GE properties. The
North Carolina Department of Environmental Quality (NC DEQ) had issued a mining permit for
the proposed operation, which allowed for mining of 28.1 acres to take place on the western
portion of the property. The permit was modified in 2015 to address concerns of groundwater
contamination in the area. The modified permit reduced the size of the mining operation from
approximately 56 acres to 28 acres. It also required that phase 2 remain as an undisturbed buffer.
The modified permit also required monitoring wells to be installed near the contaminated area
and required that mining cease immediately upon notification that regulatory limits had been
exceeded. The applicant was prepared to provide additional information regarding the potential
impacts the mine could have on that contaminated area and address any concerns or questions
the board may have.
The proposed mine would excavate sand from its highest elevation of approximately 39 feet
above mean sea level down to zero mean sea level. The applicant estimated the mine would go
below the water table about 4 to 6 feet, resulting in a lake seven feet deep, which would be left
at the completion of the excavation. No use of explosives, onsite processing or dewatering were
proposed by the applicant. The applicant could provide additional information regarding the
operational characteristics of the mine.
Regarding traffic, the number of trips of the mine would vary based on the demand. However,
according to the applicant, the mine would average 60 to 80 truckloads a day while in operation.
The proposal would require a driveway permit from the North Carolina Department of
Transportation. NCDOT had reviewed the plan to provide preliminary comments that indicated
modifications must be made to the Sledge Road driveway onto Castle Hayne Road. The exact
improvements had not been defined yet but would be determined once an official driveway
permit was applied for, which would occur if this application were approved by the County. There
was one state transportation improvement project in the area - Project U‑5863, which was a
project to widen Castle Hayne Road to multiple lanes from I-140 to Martin Luther King Parkway.
Construction was expected to begin in 2023. Photos were provided of the site, Sledge Road, and
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views of the site from various locations, including the view from the back yards of several
neighbors.
The Comprehensive Plan classified the subject property as Commerce Zone. This place type was
intended to promote light and heavy industrial uses. As mining was considered an industrial use,
this proposal was generally consistent with the Comprehensive Plan.
If the Planning Board approved the rezoning, the board must then act on the special use permit.
In order to grant a special use permit, the board must make the four listed conclusions. Each
conclusion must be supported by findings of fact based on competent and substantial evidence.
Staff has provided preliminary findings based on the evidence identified prior to the public
hearing. However, the board did have the discretion to modify those findings and add additional
findings of fact based on evidence provided during the public hearing.
Mr. Schuler concluded the staff presentation by stating that because use of Sledge Rd. might
impact the abutting residential neighborhood the applicant has provided potential conditions
that were intended to reduce the speed of the trucks and the amount of dust generated. The
applicant was willing to agree to provide a buffer fence along the impacted properties. The
conditions would limit the hours of operation to 8:00 a.m. to 5:00 p.m. Although the staff report
referenced the hours of operation would be seven days per week, the applicant had clarified
after the agenda packet was sent out that it was their intention to limit the hours of operation
to Monday through Friday. The conditions would be discussed further during the hearing to fine-
tune the required improvements.
Chairman Rawl opened the public hearing and recognized the applicant.
Applicant’s Presentation
Attorney Steve Coggins of Rountree Losee law firm stated it was his pleasure to represent the
property owner, Hilton Properties LLP. The ancestors of the partners of the limited partnership had
owned this land going back generations, as well as all the property marked I-2. The partners and
members of Hilton Properties were descendants of the people who originally owned all this land,
which originally totaled 6,500 acres. In the late 1960s, they sold to GE-Hitachi the property located
to the south before there was any development in the area. What they did not sell, what remains,
and what this rezoning was about was the last, largest, contiguous tract in New Hanover County,
isolated in the Castle Hayne portion of the county. He stated that with him were three partners
within the limited partnership, Steven Maggenbauer, Todd Woodard and David Fort. Todd
Woodard, who was sworn in, had prepared the market analysis on the necessity and high demand
for sand in the growing economy and the need to have it in an easy‑to‑access location to keep the
prices down and affordable. Floyd Williams, the consultant who was formerly with the mining
section of the Division of Land Resources with DEQ, was also present. He was also the applicants’
consultant that worked with them on obtaining the state mining permit. Also present were Mr.
Tarleton and Mr. Biel, who had prepared the market analysis as to the lack of impact of the mining
operation on the adjacent residential properties. Attorney Coggins stated those reports had been
tweaked with minor corrections made to them, and out of an abundance of caution, he would move
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for their admission into the record, in addition to all the materials they have submitted that were
the subject of the staff report.
He presented that in the 1970s, the operations of GE-Hitachi included disposing of waste of their
facility that migrated onto the applicants’ property. They were victims in this and the most directly
affected victims with respect to the contamination that took place. In consequence of the difficulties
of dealing with GE, they retained some time ago his colleague, Bill Toole with the Robinson
Bradshaw firm, a specialist in environmental law, who had monitored and taken part in the
extensive environmental monitoring and remediation activities that had taken place at the GE site.
He indicated that Mr. Toole would provide addition details as to the assurances of the lack of any
form of environmental risk or harm from the operations that were proposed.
Attorney Coggins confirmed on behalf of the applicants that they were willing to negotiate to try to
reduce the impacts of the truck traffic that would take place to get the sand to market from that
location. He explained it was proposed for that location because that was where the sand was
located, and they applicants were prepared to discuss various buffering and mitigating approaches.
Attorney Coggins emphasized that the state mining permit provided that there would be no
dewatering in the operation. This would be a dry mining operation, which had a significant effect
on any potential environmental risk. Even if there were an environmental risk there, the mining
activity being dry mining itself would not cause any migration of any adjacent pollutants. Attorney
Coggins commented regarding the topographical information at the top of the site map that it was
very flat, and the reason it was very flat is that historical photographs showed that sand was mined
decades ago from this area in order to serve the surrounding area. What was being proposed was a
continuation of those operations that went on decades ago before there was ever zoning in New
Hanover County.
The applicants would like to emphasize that among the uses that appear by-right in the current RA
zone that would have substantial traffic impacts were demolition and landscaping businesses,
landfills, schools, government offices, and mobile home parks, and hospitals by special use. All were
uses allowed under the current zoning ordinance in RA. Any portion of this property so zoned would
bring significant changes in traffic and probably not have the obligation to provide the sort of
protections and mitigation that the applicants were prepared to do in good faith to work with their
neighbors. He stated that the operations they were talking about took place at the site long before
there was a residence and long before there was a GE-Hitachi. Those prior operations were why
that top part on the site map is in the Commerce designation on the Land Use Plan. It was because
that kind of commercial activity had taken place in the past. Attorney Coggins then yielded his time
to Attorney Toole to address any concerns that had been raised in the public debate with regard to
the environmental questions.
Attorney Bill Toole said he is a partner with the law firm of Robinson, Bradshaw and Henson, in
Charlotte and former member of the city council of Belmont. He stated that he had been engaged
in 2014 to help this family-owned business address contamination that had migrated from the GE
property to the south onto their family-owned property. He said he used past tense with care. The
mining permit was amended in 2015 to reflect the environmental issues that were migrating from
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the GE property. That amendment came after close review by professional engineers and
professional geologists on the staff of the Division of Water Quality, as well as at the Division of
Mining and Land Resources, which were a part of DEQ. That permit, which was issued in 2015,
became subject to a petition challenging the issuance of the permit. He stated that challenge was
resolved, and now the permit was effective. He stated he was most interested in showing the board
what was going on at the site, noting there had been a lot of confusion based upon the reports he’d
seen in the paper about what contamination exists and did not exist.
He showed an outline of the entire boundary of the property. He pointed out the lines and the GE
property to the south, noting the location of nearby residences and the residences below the site a
mile and a half away. Pointing out the little lines showing the direction of groundwater flow, he
explained that the groundwater was flowing from the south to the north toward the swampy area
to the north. He explained that those lines had arrows and each arrow represented ten years’ worth
of groundwater migration. Groundwater migrates at the rate of about 400 feet every ten years. He
pointed out the location of the lines and stated that was relevant because it showed that the
groundwater was migrating to the north and not to the south and also migrating at the rate of about
400 feet every ten years.
Attorney Toole then presented a picture created by a consultant for GE, explaining that the blue
represents a lake as a result of mining from both phase 1, which was what was being discussed
during the hearing, and phase 2. He pointed out phase 1 was up and down and to the left, and phase
2 was up and down and to the right. Attorney Toole stated that the consultant said this was what
happened to groundwater if that mine was completed and what results is a lake for both phase 1
and phase 2. Attorney Toole stated that it would pull groundwater over to it. He noted that a little
bit of groundwater would get pulled over there over the course of time, ten years, twenty years,
thirty years, forty years. He stated that was only if phase 2 is put in; not at phase 1. That
groundwater would only be pulled in from the former contamination area over into phase 2; not
into phase 1. After RTI, the consultant, did the modeling in 2015, they submitted a report to the
Department of Environmental Quality (DEQ) and that, at the request of DEQ, they would add
sentinel wells between the contamination area and the mining efforts to monitor this. He then
pointed out phase 2, the location of the two new wells, and Phase 1 below. The two new sentinel
wells would be monitored on an annual basis so if there were ever any contamination, not
contamination over limits, but any contamination, everyone could see it because it would be drawn
over there first and that would be the first warning that there might be contamination being drawn
over to it.
In regard to what the contamination looked like currently, Attorney Toole reported that the most
recent sampling report they had received from GE was dated 2018 and consited of monitoring that
was conducted in 2017, as the reports lag a year. He stated he expected a report in the spring of
this year, but he didn’t have that yet from GE. In regard to what the report showed, Attorney Toole
stated the first picture showed sampling for uranium. There had been some talk about a uranium
dump. Those monitoring wells showed no uranium above the applicable standards. In regard to talk
about fluoride, those wells showed there was some fluoride above applicable standards, all of which
was located on the GE property; none of which was located on the family-owned property. He
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reported one figure showed vinyl chloride, which was used often and was a result of cleaning. He
explained the figure showed the extent of vinyl chloride above applicable standards, all of which
was located on the GE property, and none of which was on the family‑owned property. That is
relevant because there was no contamination, based upon the most recent data, on applicants’,
property. Attorney Toole stated, in summary, that Hilton Properties didn’t cause the contamination.
They were doing their best to address something that they didn't cause. They'd gotten GE to focus
on this, GE and the Department of Environmental Quality. He said GE had been addressing the
contamination on their property since 1999 under the oversight of DEQ, so this has been an ongoing
investigation. Now sentinel wells were located on the Hilton property, plus the other wells that had
always been there that were monitored on an annual basis, some monitored every six months, to
check for contamination that had continued to reduce, and now was no longer present on the Hilton
Properties location.
He added that the modeling that was undertaken showed that phase 1 of the mine, which was all
that would be allowed to move forward right now if the County approved the rezoning, would not
draw any contamination over to it, and even if the phase 2 mining work were done, that would
result in no contamination above applicable standards in the lake. He stated certainly there was no
reason to be concerned that any work on this property was going to affect the groundwater of any
of the neighbors because that groundwater was moving in a northerly direction, and the neighbors
were located to the south. Attorney Toole emphasized that should any contamination be found on
the Hilton Properties site above the applicable standards during the regular monitoring, the mining
would cease, as stated in the permit, and there were a lot of checks and balances.
Chairman Rawl opened the opposition portion of the public hearing.
Opposition’s Presentation
Attorney Alex Elkan spoke in opposition, stating he was a partner with Brooks Pierce Law Firm, 230
North Elm Street, Greensboro, NC, and represented Brex Estates LLC and its principals, John
Brechisci and his wife, Evelyn. He noted there were a number of folks from the neighborhood who
want to testify and provide context on this matter, including testifying as to evidence as to the four
factors for the Planning Board’s decision. Attorney Elkan stated he had submitted to the Board a
nine-page letter earlier that day and had copies of that letter if needed. He said he would not
reiterate what he said in the letter, but there were some main points he’d like to emphasize.
One, it was the applicant's burden of proof. He hadn’t been involved since 2014 like Attorney Toole
but was an environmental lawyer and was very familiar with the same things Mr. Toole was, and he
had reviewed the results as indicated in his letter. He explained that to his eye, it indicated there
had been contamination in the groundwater underneath phase 2. Looking at the materials
presented to the Planning Board, the applicant had the burden of proof. They had to show the board
that it was in the public interest and was not going to impact public health. Attorney Elkan stated
there was no sampling from phase 1 where the mining was going to take place that would confirm
that there was not contamination, and he did not see the modeling work from a wet mining
operation, which he believed it would be, and how that would impact groundwater flow. He said,
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looking at the same reports, to him it looked like there was groundwater contamination above 2L
standards underneath phase 1, and that then has the potential to migrate on the subject property.
Second, the special use permit, to his mind and his straight reading of the ordinance, was not in
compliance with I‑2 standards. There was a 20‑foot buffer required, and the application was
required to have a site plan that shows the buffers. The site plan didn’t show the buffers and should
be rejected for that administrative reason and not considered tonight. They had to have a 20‑foot
buffer along the use of the area for I‑2 purposes, including Sledge Road. That was mandatory under
the zoning ordinance.
Third, in regard to the appraisal report, it was undeniable. Folks who were adjacent to and in that
neighborhood could testify competently to the value of their own property and the diminishment
of the value of their property by a truck going down the road every three minutes and twenty
seconds along their property line. He stated with eighty trucks per day, one trip down and one trip
back is 160 trips over nine hours. That would be a lot of trucks, a lot of noise and a lot of vibration
that would negatively impact the adjoining property owners. Attorney Elkan yielded the rest of his
time to the neighborhood.
Susan Murphy of 5719 Dekker Road in the Wooden Shoe subdivision spoke in opposition, stating
her back door was located 175 feet from Sledge Road. She was opposed to the rezoning and special
use permit to allow the sand mine for several reasons, including environmental concerns and
possible negative effects on her well, but the effect the traffic on the haul road would have on her
property could not and should not be ignored. Her property was one of approximately twelve tracts
that directly bordered the one-lane, gravel Sledge Road, referred to as the haul road, which was the
only ingress/egress to the property of the potential mine. There was absolutely nothing that
physically separated the two properties. If she was in her backyard, she could see, hear, and feel
the rumbling of every vehicle that traveled that road. Ms. Murphy said the applicant stated in their
application that the site of the actual proposed mine is far outside the view or hearing of any
residents and Sledge Road had been used commercially for decades, even prior to Wooden Shoe
subdivision being there. She agreed that she wouldn’t be able to see the actual mining operation
and that Sledge Road was present years before she bought her property but stated the applicant
had failed to mention that the commercial traffic referred to is not a daily procession of 60 to 90
trucks as expected for the mining operation, but rather, consisted of very few logging trucks
irregularly, at best, not every day and certainly not for nine hours a day. Ms. Murphy stated that the
applicant was requesting to operate nine hours a day, seven days a week. She noted they had said
earlier in their presentation that the proposed days of operation would be Monday through Friday,
and she hoped that was what they really meant. She noted seven days a week is every day for the
life of the mine. During some months, it would mean trucks would be traveling that road every
daylight hour of every day of the week. Ms. Murphy reported that at the community meeting held,
the applicant had stated that it was not known how many trucks would be traveling the road each
day, but it could be up to 100. Conservatively, if only 80 trucks per day use the road, there would
be a truck traveling down this road every 6.8 minutes, but the trucks also had to exit the property,
meaning there would be a truck passing by her property every 3.4 minutes. That, in itself, would be
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highly intrusive, but with the dust, noise and vibration caused by that volume of trucks, it would be
nearly impossible and certainly unhealthy to be outside for any amount of time.
She commented that the timetable of five to seven days a week for nine hours a day would serve
the applicants well financially, but questioned the impact it would have on her family’s ability to
enjoy their backyard for family cookouts and recreation time, swimming in the pool, swinging or
jumping rope. Ms. Murphy felt she would never get to enjoy her property if the rezoning and special
use permit were granted according to the application. She pointed out the applicant stated that
precautions would be taken to minimize any truck traffic, noise and dust, yet the application failed
to state even one mitigation measure. She noted she did see a few that were recently added. The
state mining permit required the applicant to utilize water trucks or other appropriate methods to
prevent dust from leaving the permitted area, including the access road. She reported that the dust
generated by the trucks she had pictures of was tremendous and certainly left the access road
without question. Sufficient watering to prevent the amount of dust seen in the pictures had the
potential to damage the road, creating even more problems.
Ms. Murphy requested that the board not require speed bumps if the request were approved,
noting speed bumps would only create more noise and vibration. During the community meeting
held on October 24, 2018, when asked by an attendee how residents should counteract the noise,
the applicant’s response was that residents could put up a privacy fence along their property line.
When she asked the applicant how they planned to mitigate the dust, noise, and obtrusive view of
so many trucks, she was told that maybe she could plant some trees. After the meeting, in the
changes or adjustments to the application, it was stated that the applicant was exploring ways to
mitigate any effects of noise and dust on Sledge Road. Never in this process had she heard the
applicant mention, even once, any attempt to mitigate the effects the operation would have on her
property. Ms. Murphy asked if board members would want their families to breathe in the dust on
a daily basis. She stated that it was evident from the applicants’ comments that they didn’t want
the responsibility of mitigating the dust, noise and vibrations caused by their truck traffic and would
much rather the affected residents take care of the problem. She said she had no confidence that
the effects of the haul road on their properties would be addressed in any way by the applicant
unless specifically required by the wording of the permit. She commented that it was slightly
encouraging that planning staff had noted that the haul road would impact their neighborhood and
had stated that the truck traffic generated by the operation could be heavy at times, that without
sufficient mitigation it could impact the nearby homes, and that although a sand mine is generally
consistent with the comprehensive plan and commerce zone place type, without improvements
along the section of the road to mitigate the impacts, the potential truck traffic may not be in
harmony with the area.
Ms. Murphy again expressed opposition to the request, and stated if the rezoning and special use
permit were granted, she would beseech the board to disallow the mining operation during the
weekend days of Saturday and Sunday, limit the hours of operation to 8:00 a.m. to 5:00 p.m., with
no special conditions allowed in regard to construction time outside of those hours, and directly
address and require the applicant to widen, pave and maintain Sledge Road where the road backs
up to the properties, at least. She said paving the road was the only thing that might reduce the dust
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and vibration to a tolerable level. She said additional recommendations or requirements would be
to install and maintain the privacy fence that they were in favor of doing; and plant and maintain a
vegetative buffer to further reduce the visibility of the trucks. In conclusion, Ms. Murphy asked the
board not to rush the decision and to show the residents of the county that although commercial
development could be a good thing, the residents were also a valuable commodity who warranted
respect and consideration in all endeavors that might impact their quality of living.
John Carroll of 5825 Dekker Road stated he had relatives who reside at 5829 and 5820 Dekker Road.
He said there was a history of negligence in solving the haul road issues, which had been discussed
with the applicant since the first community meeting over five years ago. No solutions were offered
at that time, but they admitted they would look at the issue. The haul road issue was again discussed
in early 2014 at the first Planning Board meeting. Ben Andrea had begun the meeting by noting the
proximity of the homes located along Sledge Road. Notes for the meeting stated the applicants
would be open to working with the homeowners in the area to ensure the residents' concerns
related to trucks and dust were minimized; however, to this day, they had neglected to have that
meeting. During the meeting, at least six citizens mentioned issues with the haul road, and at the
end of the meeting, various Planning Board members had requested that the neighbors’ back yards
be addressed and that the applicant work with the neighbors on buffering options to lessen the
impact and provide specifics on the proposed buffer along Sledge Road. Mr. Carroll said the haul
road issues had received little to no thought or concern over the last five years and there still wasn’t
a definite plan.
Mr. Carroll stated that two issues must be resolved, property values and property rights. A study
done by Streamline Evaluation Services showed operating sand mines located adjacent to
neighborhoods would have little impact long term on a neighborhoods’ value. Yet, that report could
also prove the residents’ point. The entire premise of the report was not specifically looking at the
problem. It identified the haul road, but in the summary of findings, the report stated there
appeared to be no significant economic impacts to home values as a result of having an active sand
mine in close proximity. That was not the situation for the Wooden Shoe residents, who were
located over one mile away from the mining operation but adjacent to the haul road. In the
examples provided in the report, only two of the four neighborhoods showed a noticeable
downward sales price trend at some point once the sand mine became active. Those two
neighborhoods were the only neighborhoods located adjacent to the haul road, and they had a price
drop of 11% and 14% compared to the county average. He pointed out the neighborhood with the
largest drop was the neighborhood with the most homes adjacent to the haul road. Mr. Carroll
stated that according to the special use permit application, the burden of proof is on the applicant
to show the project would not substantially injure the value of adjoining property, and the report
left more questions than answers regarding the sand mine haul road’s effects on value. He felt it
was common sense that their properties’ marketability would be hurt by having up to 100 heavy,
noisy trucks a day making 200 passes per day. He noted the report didn’t provide assistance in
understanding how much effect the haul road had but recognized the closer a home was, the
greater the effect. Everyone knew that 200 dump truck passes a day would have a negative influence
and push buyers away. Large truck traffic adjacent to a property infringed on a property owner's
rights and reduced the ability to enjoy that property. The intrusive noise and potentially damaging
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vibration of the trucks would drone on day after day injuring it. The applicants and the Castle Hayne
residents knew this, and the Planning Board members, past and present, knew this. He said the
residents understood the issue was not simple, but they were frustrated and disappointed in the
lack of effort protecting their properties’ rights and values from being injured by the applicant.
Mr. Carroll said in answering special use permit finding four, requiring the project to be in harmony
with the area, the applicant attempted to downplay the issue on Sledge Road with hypothetical
situations. The issue of having up to 100 trucks per day must be resolved before moving forward.
So far, the applicants had neglected the requests of the citizens and the recommendations of
previous Planning Board members. He would like board members to understand that, based on
their action, the applicants had little concern for the citizens and their properties. The applicants
were required to prove that their project would not substantially injure the value of adjoining
property and that it would be in harmony with the area. Their property value impact study neglected
the haul road and their discussion related to harmony with the area ignored the issue of 200 truck
passes per day adjacent to the abutting properties. Mr. Carroll recommended that the Planning
Board require the applicants to study the effects of the haul road on the adjacent properties before
allowing the application to move forward.
Wayland Webbon, a resident of Wooden Shoe subdivision, spoke in opposition to the request. He
expressed concerns about traffic safety on Castle Hayne Road near the exits of MacDougal Drive
and the haul road and the potential release of airborne radioactive materials from the haul road
onto Wooden Shoe subdivision. He stated the burden of proof was on the developer, and he
believed it was incumbent on the developer or appropriate authorized responsible agency to show
studies that the accumulation of radioactivity from airborne dust and gases from the haul road
vehicles on the neighborhood would meet environmentally acceptable radiation levels over the
lifetime of residents. Control of the level of radiation was imperative to preserve residents’ health
and property values. He said those seem to be minimum requirements to protect health in a
neighborhood when hauling materials contaminated or potentially contaminated from radioactive
waste over a period of several years. Mr. Webbon requested an airborne radiation study be
conducted, and if a study was not performed, he would request permanently recorded, continuous
monitoring of airborne radiation levels in the Wooden Shoe area with unobtrusive equipment.
Mr. Webbon stated Castle Hayne Road was a major traffic artery in the region. At the haul road
outlet, the curved, two-lane road had high traffic and highway speeds, and there were issues with
vehicles speeding up and problems with visibility in the transitions to the curve. Four lanes are
reduced to two lanes leading away from the GE plant. There were many traffic accidents, and left
and right turns from MacDougal Drive required wait times of 60 seconds or more so the same wait
times could be expected for the haul road outlet from the proposed sand mine as it was only 250
feet away. Drivers had been rear-ended when attempting to turn onto MacDougal Drive. At least
one fatality and one permanent disability had resulted at the time of the first submission of the sand
mine. He believed it was incumbent on the appropriately authorized, responsible agency to
demonstrate that adequate safeguards for handling the increased congestion would be applied and
would prevent additional injuries, fatalities and disabilities. The State of North Carolina recently
replaced the Castle Hayne stoplight two miles from Wooden Shoe subdivision with a roundabout
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after several injuries and deaths had occurred. Mr. Webbon requested that a traffic study be
conducted, regardless of whether the data indicated that it wasn’t required.
Mike Roncone, a homeowner in the adjacent Wooden Shoe subdivision, spoke in opposition to the
proposal. In regard to the conditional zoning application, the applicant on criteria number three
addressed the significant neighborhood changes that had occurred to make the original zoning
inappropriate. The applicant stated they had a mining permit, but that was not a change in the
neighborhood to make it appropriate. They also said mining excavation activities were going on at
GE currently. As the previous page said, it was because GE was conducting sand mining near the
subject parcel as part of a required environmental remediation activity arising from GE's
groundwater contamination. GE had gotten notices of violation from the state and from the federal
US NRC so they’re trucking it out; it was not because they were running a sand mine for commercial
purposes. The application states that those are changes in the neighborhood. Mr. Roncone said they
didn’t meet that criteria at all. He would contend that the changes that had been made in the
neighborhood reinforced the rural agricultural zoning currently in place, including the development
of a beautiful 20‑plus acre horse ranch with state‑of‑the‑art stables and riding paddocks where kids
ride horses and horses are boarded and there are fenced pastures. They had retention ponds of
their own to handle runoff remediation, and that type of thing. He also noted the development of
the River Bluffs gated community nearby, which had swimming pools, etc. which also lent itself to
the rural agricultural zoning in place. In regard to how the subject land was unsuitable for uses
permitted under the existing zoning, the applicant admitted they’d been harvesting timber on that
land for years. It was absolutely suitable as it was under Rural Agricultural.
Mr. Roncone stated the opposition had a report from the folks from GE who spoke at a previous
Planning Board meeting regarding this site, in which they stated that the Nuclear Regulatory
Commission approved a mitigation plan that had been in place for more than fifteen years that they
carefully monitored, and it was working according to plan. GE's concern was that the mining
operation had no impact on that mitigation plan. Christopher White who spoke at that meeting on
behalf of GE found natural attenuation was the best course of action. Mr. Roncone recalled him
saying that it should not be disturbed. It stated in the meeting minutes that the best course of action
for natural attenuation was leaving it and letting it be. That was from the GE engineers in their
environmental division. Diana Hart of GE also addressed the natural attenuation plan at that
meeting. Mr. Roncone entered the official minutes from the Planning Board into the record. Ms.
Hart had said the wells on the Sledge property did indicate vinyl chloride at levels above drinking
water standards at that time. She stated that in regard to contamination in the surface groundwater,
she would estimate the groundwater to be at ten to twelve feet below existing grade. Mr. Roncone
reported that many of his neighbors in Wooden Shoe had informed him that their wells are at
eighteen feet. One of the members of the previous board felt that excavating, if it affected GE’s
effort, would be a major issue, and others made statements that the mining should be kept above
the water table. The applicants had talked about the mining going below the water table by four to
six feet, but GE’s recommendation was that the mining not go near the water table and members
of the board also agreed. The Planning Board chairman and vice chair at that time were more
concerned about groundwater contamination than the other issues regarding the application.
Noting that at the conclusion of that meeting, the chairman had said the board wanted to make
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sure they made the right decision, Mr. Roncone stated he would pray that the current Planning
Board held that same sentiment.
Roger Shew, a resident of Wilmington and New Hanover County, stated he had concerns related to
the environment and the real estate comparables given. He agreed, based on the groundwater data,
that sand mine construction wouldn’t lead to movement of the contaminants from the northwest
contaminant site to the Wooden Shoe subdivision. The groundwater monitoring over time showed
the flow paths led to the north as stated earlier and not to the east. Sand mining to the west would
actually move those potential metric flow paths slightly to the west, as shown in the RTI study. He
emphasized that was important because it was not going to move at the same rate once a water
mine was put in; it would actually speed up a little bit, which was why better monitoring was
needed. Natural attenuation, which was the approved method by the Department of Natural
Resources, to reduce the contaminant levels, had been somewhat effective, but there were still
contaminant areas that exceeded state health guidelines, particularly vinyl chloride. For that reason,
it was critical to install additional monitoring wells between the contaminated site and the proposed
mine site on the phase 2 buffer area, not just adjacent to the contaminant area.
Mr. Shew stated that sand mine lake waters must also be monitored and the testing frequency
should be six months or less to ensure shutdown of the operation should contaminants be found to
be moving, as required by DEQ. In regard to testing, labs should be chosen that could measure the
low, but still dangerous contaminant levels. Some labs couldn't measure to the state required vinyl
chloride level of 0.02 parts per billion. Gas chromatography and photoionization measurements
could do that. Mr. Shew proposed that mining activities if approved should be started on the
western side of the mine site to allow more time for attenuation and lessen the likelihood of
contaminant movement early in the operation. Also, DEQ proposed a minimum 50‑foot buffer to
the wetland, but he believed that dust and potential impact to the wetlands would be lessened with
a minimum 65- to 100-foot buffer. The Nature Conservatory often advocated for a 65- to 300-foot
buffer. Mr. Shew said it was desirable to minimize any edge effects to the wetlands and the
transition zone, which were very important to biodiversity protection.
Mr. Shew said he was pleased that wet mining would not be the method employed, but he believed
excavation of sand should only be down to the level of the wetland surface, which was plus 2 feet
above sea level. Model studies by RTI showed that it could possibly cause some drying out the
wetland surface adjacent to the lake if mined to sea level. Mining only to the ground surface level
of the wetland would minimize possible lowering of the water table that might occur during dry
conditions. The above considerations were for primarily monitoring and protecting the environment
and ensuring no contaminant effects to the surrounding area.
Mr. Shew said the other critical issues to address were whether the mine operation would be in
harmony with the surrounding area and if it impacted property values and health. A study was
provided and had been discussed to illustrate that there was no reduction in property values for
homes adjacent to mines. As stated very well by a previous speaker, that study really looked at the
sand mine proximity and not the trucks. The proposal was for a mine with 80 to 100 trucks a day for
five or seven days a week for a five-year timeframe. The question was what happened in those
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comparable mine areas. If you looked at the areas in the study, two of those areas had no truck
traffic proximal to any houses. That needed to be looked at because, as staff said correctly, truck
traffic without sufficient mitigation could impact the nearby homes. It was not correct to say that
there would be no property value effect if someone knew about the truck traffic. Haul capacity along
the roads should be looked at, as opposed to just the proximity of the mine site. Mr. Shew said
lastly, noise, dust, and diesel emissions should also be considered. Moving the road would be best,
but at a minimum, paving the road behind the homes for a large distance beyond the backyards
would help reduce dust and noise levels. He stated fencing would not be enough; buffer vegetation
would also be needed to further reduce noise and some of the diesel emissions. Mr. Shew stated
hope that the Planning Board would consider these and the other comments that had been made
because they needed to ensure the residents, as well as the environmental health of this area.
Chairman Rawl stated the thirty-minute opposition comment period had expired. He announced
that Planning Board members with specific questions would present those questions, and then the
board would continue with the rebuttal period.
Board Member Ernest Olds asked Mr. Shew to describe for the record his qualifications for the
subjects on which he spoke.
Roger Shew stated he taught Geology and Environmental Science at UNC Wilmington, worked for
industry for twenty years, and had worked for another eighteen years at UNCW as a practicing
geologist and environmental scientist.
Board Member Ernest Olds asked Ms. Murphy to provide a more detailed description regarding the
frequency of current truck traffic, including what it looked like, what it did, what it carried, how
often, what it sounded like, etc.
Susan Murphy explained that she had seen pickup trucks occasionally, once or twice a week at
times. She had seen logging trucks. She understood that there had been a logging operation going
on there for quite a while. She herself had only seen five trucks go by, some of which she had
pictures of. She indicated there were some days that there was no traffic traveling that road. She
noted that usually when it’s a logging truck, she could tell that it was coming. In the last couple of
months since this mining permit had picked back up, she had seen additional traffic, but it was
mainly just pickup trucks that she assumed belonged to the family.
In response to Board Member Olds’ inquiry, Ms. Murphy confirmed she was involved in the
settlement of a lawsuit noted in the package and has been involved with this for a while.
Vice-Chairwoman Donna Girardot inquired why the applicant was seeking to rezone the entire 63
acres when they were really focusing on the 28 acres; and if that was in anticipation of phase 2.
Vice-Chairwoman Donna Girardot received confirmation from the deputy county attorney to ask
questions about items in the planning board packet that had not been entered into evidence at the
meeting. She then asked if well water or watering trucks would be used to water the haul road, if
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that would increase the number of trucks on the road beyond 160 per day or if a well would have
to be drilled.
Attorney Coggins stated it was his understanding that water trucks would be used to water the road,
would be on-site for that purpose, and would not be coming in and out along the road.
In response to Vice-Chairwoman Girardot’s inquiry, Attorney Coggins confirmed there was not
another ingress or egress to the sand mine property other than through the GE property that could
be utilized instead of Sledge Road. GE controlled that site, and it was subject to stringent homeland
security requirements given the nuclear work and research that occurred there. GE would not
permit any usage of their road infrastructure.
In response to Vice-Chairwoman Girardot’s inquiry about the proposed maximum excavation depth,
Attorney Steve Coggins stated it was approximately 37 feet down to mean sea level, which would
leave a lake depth of approximately seven feet.
Vice-Chairwoman Girardot stated, regarding the lake depth, that she had a copy of a letter to Hilton
Properties in 2014 from DENR, now called the Division of Environmental Quality (DEQ), stating that
the reclamation plan should be revised to show that final reclamation would not be a lake.
Attorney Coggins stated he couldn’t address that because there had been a substantial amendment
to the mining permit since that time. The mining permit was in consequence of further research
that was done, and they had to comply with what was allowed by the permit issued in 2015.
Vice-Chairwoman Girardot suggested Mr. Toole might address that change from DEQ later in the
meeting.
In response to the vice-chairwoman’s inquiry about the proposed life span of phase 1, Attorney
Coggins stated their best projection was approximately three years and that the reclamation plan
would include the lake and landscaping. He explained that all state permit and reclamation
requirements were included in the mining permit provided in the package.
Vice-Chairwoman Girardot asked regarding the negative impacts on property sales from the mine,
if there would be a longer time on the market for properties and if that had been researched. She
also inquired if the consultant had addressed the fact that perhaps it would be the truck traffic going
back and forth that would discourage people from buying property and not the sand mine itself.
Attorney Coggins stated that the consultant was present to answer those questions and pointed out
there are at least two subdivisions within the report that were examined in which the access road
went directly by and abuts residences. The report found that over the course of the life of those
particular mining projects, one was four years and the other was six years, that early on there was
a decrease of between 2% and 14%, but within the lifetime of the operations, the values then
jumped right back up and above to where they were at the beginning of the operations.
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Vice-Chairwoman Girardot asked if the applicant had given any thought to sampling the lake waters
as well. Attorney Coggins deferred that question to Attorney Toole. In response to another inquiry
by the vice-chairwoman, Attorney Coggins stated the number of logging trucks going past there now
was very low.
Vice-Chairwoman Girardot commented regarding an earlier reference by other speakers that she
and Mr. Shipley were members of the Planning Board that had heard the proposal in 2014.
Attorney Coggins stated he would like to underline that a substantial amount of work had been
done, particularly in the environmental studies alone, in terms of the papers, roughly a foot and a
half thick, and those were just the summary reports.
Board Member Allen Pope asked Mr. Coggins to provide specifics on the applicants’ response and
the mitigation for the haul road.
Attorney Coggins stated the specifics include the following:
1. Maintain the hours of the operation from 8:00 a.m. to 5:00 p.m., Monday through Friday.
2. A speed limit of 10 to 15 miles per hour in the section between the two gates to which
the houses are immediately adjacent.
3. Applicant is willing to consider speed bumps, although it is his understanding that there
are those who do not wish those be put in.
4. Watering truck to mitigate dust on the haul road.
5. Add perhaps crushed asphalt or rock aggregate in the section between the two gates.
6. Add a wooden fence or vegetative buffer for the impacted residential properties. That's
approximately a half mile long if you include the horse barn and a quarter of a mile if you
talk about the residences.
Board Member Pope stated, based on his experience with trucks hauling material, particularly dirt,
for many years, it was his opinion that putting crush and run stone on that roadway, striving to
maintain it with that amount of truck traffic, and hauling water to try to control the dust would not
do. He inquired if the applicant had considered paving that road.
Attorney Coggins replied that they had not looked at paving the road in detail.
Board Member Pope asked Attorney Coggins if the applicant had made any considerations regarding
the type of buffering, and if so, to provide those specifics in addition to what he read earlier.
Attorney Coggins stated buffering would include wooden fences, and the creation of berms and
vegetation. He asked the board to keep in mind that Sledge Road was sixty feet wide and the
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applicant would have to deal with the logistics of that in terms of ditching on the other side and
things like that, but at least there was some room there.
Board Member Pope stated there were several secondary roads built within 60‑foot rights‑of‑way
so he could understand that. He inquired if the applicant was most likely planning on a single-lane
roadway through there.
Attorney Coggins confirmed they were very likely planning on a single-lane roadway there, but
nonetheless, wide enough that if two trucks come together, there was a way to get around.
Board Member Pope asked if there had been any sampling for contamination done by the applicant
on the mining area itself.
Attorney Coggins confirmed the applicant had conducted sampling for contamination on the phase
2 area. He stated they had not conducted sampling on phase 1, simply for the fact there was no
indication of any contamination there. Attorney Coggins stated they know that there had been no
operations that took place there on that land, and that all migration that has been measured that
comes from the contamination on the GE site went in a northeasterly direction; therefore, it
wouldn’t have gone to the phase 1 site.
Board Member Pope asked if there was any opportunity for the applicant to place monitoring wells
between the contamination sites and the actual mining operation and requested the location of the
sentinel wells be pointed out on the map.
Attorney Coggins confirmed that monitoring wells had been placed between the contamination
sites and the actual mining operation.
Attorney Bill Toole then explained in response to Mr. Pope’s questions that the reason there hadn’t
been any sampling on the phase 1 area is because there was no indication of any contamination
moving in that direction. As an example, he pointed out the vinyl chloride map showing the location
of the sampling and the result of non-detect. There was no reason to look further over there,
because if it was non-detect around the source of the contamination, then it was a
misunderstanding of physics to imagine that it migrated over there, particularly when the
groundwater migration was in another direction. In regard to the sentinel wells, he pointed out
phase 1, the location of the sentinel wells that had been put in, and the contamination source area,
where GE disposed of waste. He pointed out the direction that groundwater was moving and stated
that GE had put in, because of this application, two new sentinel wells, which had been sampled.
The results had come back non-detect. He noted those results were not included in Mr. Elkan’s
materials and may have been inadvertently left out. He asked Mr. Coggins to distribute that
information so board members could see the sampling showed no detection.
Board Member Pope stated he understood some of the professional reasoning for the location of
the sentinel wells. As a good neighbor, the applicant had relied primarily on GE’s study and GE’s
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testing. Mr. Pope stated it would have been nice if the applicant could provide a reasonable
explanation other than GE’s own sampling and testing that there was no contamination.
Attorney Toole explained that it was GE’s sampling and they paid for it, but it was reviewed by the
professional engineers and the professional geologists at the Department of Environmental Quality.
Those were the subject matter experts, which is why they had deferred to their judgement. He
added that the U.S. Army Corps of Engineers, an expert in wetlands management, concluded that
the lake would not be a dewatering event for the wetlands in the area. He said that GE, who was
cited, concluded as a result of the modeling work they did that there was minimal potential for
uranium or fluoride concentrations to reach levels of concern in a mine lake the approximate size
of lake 2, which would result from both phase 1 and phase 2. Attorney Toole also reported that Mr.
Shew had made a good point, which they had discussed internally, regarding doing the mining from
the west toward the east to give the contamination even further time to mitigate. He noted that
was also the reason why there was such a substantial change from 2014 to the revised permit to
have this phase 2, which was a conditional phase, to allow that contamination to resolve itself.
Board Member Pope asked if the mining operation were to take place above the water table, how
much depth the applicant would lose in the mining operation.
Mine Operator Dave Tripp responded that the applicant would lose about four feet of material by
staying above the water table.
In response to a request by Vice-Chairwoman Girardot, Attorney Toole stated that monitoring the
lake was certainly possible. It hadn’t been required nor requested by DEQ. He commented there
was no lake there currently so there was nothing to monitor, but it would not be a big deal to do so.
While he didn’t believe it was indicated, it was not a big requirement.
Chairman Rawl opened the rebuttal period and recognized the applicant and those in support of the
request.
Applicant’s Rebuttal
Attorney Coggins stated the applicant team wouldn’t have further witnesses. The only other point
of rebuttal was to address a point regarding the supposed requirement of buffers. He reminded
board members that buffers were, in fact, provided 50 feet to the north and 30 feet on the south of
this particular mining operation location. The 60‑plus acres there was the subject of the zoning
application, and the buffers were, in fact, shown on the site map that had been presented. The
Sledge Road access was not a subject of the rezoning, but the buffering requirements that were
stated in the New Hanover County ordinances would be amply addressed, even if they were
applicable and they were not, by the mitigation factors being discussed.
Alan King of A. C. King Clearing & Grading stated he supported the mine opening. He understood
the residents’ concerns regarding their issues with the road, and he hoped the applicant could
address those issues and bring everyone into agreement. He explained that materials were very
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limited in New Hanover County. He currently owned twelve trucks and supplied trucks for
residential and commercial building. They travel outside of the county past this site to go into
Pender and Brunswick counties to bring materials back into New Hanover County where most of
the building was taking place. Mr. King asked the board to take into consideration as they vote on
the matter that having a sand mine in the county would help keep costs down for operations, for
his business, and for customers.
Hearing no other comments from those signed up in support, Chairman Rawl opened the opposition
rebuttal period.
Opposition Rebuttal
Attorney Alex Elkan inquired in regard to the I-2 and the straight reading of the ordinance, if the
haul road was not part of the I-2 CUD special use and remained RA, how it was proper use of an RA
parcel to convey mined sand from an I-2. He asserted that if it was being used for the sand mine, it
would be part of the sand mine operations. He indicated that it should be rezoned I‑2, with the
requirement for a 20‑foot buffer. Otherwise, it shouldn’t be used for the operation’s trucks. He said
it was appropriate to run trucks from a logging operation in accordance with an RA use, not from an
I‑2 operation. Attorney Elkan agreed with Mr. Toole that in some respects those things were
complicated enough without differing on facts. He also stated that Mr. Toole was correct in that the
sentinel wells had come up clean. His point was that there was flow north. There was a history of
above 2L standards in groundwater on the GE property, not differentiating on the most recent data,
which he had not seen, but there was still above 2L in the wetlands to the north. It was getting there
because it was percolating up according to the report. It was going in through the groundwater
underneath that parcel. They had two monitoring wells that only captured from what was going
from the GE parcel. He indicated there was insufficient information in the application materials as
to what would occur once wet mining started to the west in phase 1 and the impact on groundwater
under phase 2. Attorney Elkan also briefly pointed out the contamination was comprised by VOCs,
very persistent chemicals in the environment. A lot of it volatilized up, but the vinyl chloride, TC,
PCE, and the rest of it go down into the groundwater and hang out there for a very long time. Natural
attenuation was sitting, leaving it, and hoping it didn’t keep going too far, which as stated by a
previous speaker, was what the plan was.
Kerri Allen stated she was Coastal Advocate with the North Carolina Coastal Federation. The
federation was a nonprofit organization dedicated to protecting and restoring the North Carolina
coast and represented over 16,000 members throughout the state. The proposed high intensity
mining operation in the 4100 block of Castle Hayne Road had raised concerns about public safety
and the health of the local environment. The location of the operation on property adjacent to a GE
inactive hazardous waste site increased the potential for contaminants to migrate from the site and
into groundwater supplies. Ms. Allen stated after reviewing the complete application, they were
concerned there was not enough information provided to evaluate the total potential impacts to
make an informed decision that would serve to protect citizens and allow for reasonable business
development. Their concerns included the following items. The application lacked a clear
monitoring plan. While the applicant stated that mining would stop if wells indicated contaminant
levels exceeding 2L standards, information detailing specific sampling protocols, including
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frequency intervals and total duration was missing. The application didn’t state who would be
conducting the monitoring and whether it would be performed by RTI under contract through GE
or by an independent third party. An adequate monitoring plan should include details confirming
that the sampling results would be disseminated to the regulatory agencies and the public and a
timeline for publishing this information following testing. It should also include details of procedures
to ensure cessation of mining if and when contaminant levels exceeded 2L standards. The applicants
had stated that the mine would eventually be reclaimed as a lake to support wildlife and provide
habitat and that the lake served to capture and contain, break down, and dilute any groundwater
contaminants that migrated into it. Monitoring the lake was not presently in the proposal. This was
important to ensure safety of wildlife, as well as those who might engage in recreational fishing.
Finally, the 2006 Wilmington-New Hanover County CAMA Land Use Plan classified the subject site
as Wetland Resource Protection and Conservation. Ms. Allen stated, given the proximity of swamps,
forest, and wetlands to the site, they recommended that conditions be placed on any approvals to
ensure that current and future operations wouldn’t adversely affect the quality or function of any
adjacent wetlands. Ms. Allen thanked the board for their time and the opportunity to present the
comments. Ms. Allen also stated they would recommend continuing this item to fully address the
environmental and public health concerns to ensure protection of the residents’ already impaired
drinking water resources.
During opposition rebuttal, Jack Gale stated he was a realtor and has sold real estate in this area
since 2001. His team had sold over 2,500 properties. He said he couldn’t begin to estimate how
much the value of homes would decrease over the period of five years, but he would say that
anytime you had a situation that would be considered a public nuisance, it was going to impact the
value of the property surrounding it. When you looked at properties in Jacksonville that were close
to the Marine base where they fire the canons, the realtors must disclose that information. Realtors
were also required to disclose that information when Torchwood and the Ogden area were being
looked at to extend the Military Cutoff Road. The same thing had occurred for many other things
that have gone on the city and county where items had come up that could potentially impact the
value of homes. Mr. Gale said he could assure everyone that over the five years of the life of the
sand mine operations, the values of the homes in Wooden Shoe subdivision would go down.
Bob Conger stated he lived at 3609 Rosewood Landing Drive in the River Bluffs subdivision and was
a chemical engineer with 42 years of industrial experience with DuPont and Celanese, including a
couple of decades of environmental experience and environmental remediation. Mr. Conger stated
that the information provided here did have two sides. It could be considered from the applicant’s
view or the opponent’s view. What was critical was that the applicant had not taken advances to
try to assure that the studies met the residents’ needs. He noted the area had record rainfall the
past year and asked if the RTI study of 2016 had considered that level of water fall and checked the
water levels this last year. Mr. Conger stated he didn’t think anything had been done to further
investigate an unusual year that was probably not predicted in the modeling. Modeling could also
be viewed in many ways just like statistics, and a vetted model by another industry would be
advantageous. He stated he did environmental remediation and could probably do a vetting of that
model. He commented that industry has provided prior assurances, for example Celanese
Corporation in Charlotte offered a price protection for houses. If the value was impacted, Celanese
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Corporation made up the difference. He suggested that might be a model here because it was
obvious that house prices would be significantly influenced at least for a couple of years. This project
had value in the use of a sand mine, but it was harmonious with the industrial use down Highway
421. It was not harmonious with the residential growth that had occurred on Castle Hayne Road,
and it would impede future growth and stop us from growing a long-term tax base like Porters Neck
versus the temporary benefits to the county by a multi-year sand mine. Mr. Conger then asked
everyone present that was opposed to the proposed sand mine to stand and make themselves
known. A number of people stood to indicate their opposition to the sand mine.
Ellie Kline stated she lives off Military Cutoff Road where another planning commission and elected
body chose to do inappropriate development. She asked the board to consider the Titan Cement
proposal. She said there were areas of the county currently in a food desert and inquired why the
board would take away an agricultural area and fill it with trucks, sand and industry. She noted that
is where small farming might be promoted so that food can get into the areas that currently don’t
have access to it. She asserted that residents of the County were currently drinking poisoned water
and knew from the Chemours issue that groundwater and well water was contaminated and
questioned why that chance would be taken. She also expressed concern about the many trucks
travelling to and from that location on city and other streets and the costs to taxpayers to fix those
roadways.
Sherry O’Daniel of 6207 Torches Lane stated there were new studies because of climate change that
were occurring. More hurricanes had occurred, and the area had received record rainfall. Her
biggest concern was the studies concerning sand mining and the contribution sand mining had made
to increased flooding. She said it was a new study that been done, and she hoped the board would
address that because this area couldn’t withstand any more flooding.
Chairman Rawl closed the public hearing and opened the planning board discussion period.
Board Discussion
Board Member Jeffrey Petroff stated the access to the proposed sand mine site ws a 60‑foot wide
road located on the applicant’s property and was not a right-of-way.
Mr. Schuler confirmed that the property access was very narrow where it connected into Castle
Hayne Road and was much wider closer to the river.
Board Member Petroff commented that the county didn’t zone roads like the City of Wilmington
and inquired if there was precedent of having high intensity zoning like this without access to a
public right-of-way and without non-continuous zoning between the two.
Mr. Schuler confirmed there was historical precedent for that. The access road was not considered
as part of the use. The use would be where the actual mining operation was occurring. He also
confirmed that the applicant could have come forward with a rezoning request for the sixty foot
wide section and the mine in one application.
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In response to Board Member Petroff’s request to clarify the phase 1 and phase 2 approval
processes for the sand mine operation, Mr. Schuler explained this was a conditional zoning
application, so if approved, they would be subject to the proposed site plan, which was currently
showing phase 2 as an undisturbed buffer. If the applicants wanted to mine phase 2 in the future,
it would be considered an expansion upon what they had approval for and would require them to
come back to the Planning Board and County Commissioners to obtain approval to mine the phase
2 area. Basically, it would require a modification of the special use permit associated with the
conditional use district but would not require a rezoning. The process for approval of the special
use permit would include a quasi-judicial hearing.
Board Member Petroff asked how the State of North Carolina could issue a mining permit on land
that was not zoned for that use without that being a condition of the permit. Mr. Schuler replied
that he couldn’t speak for the State. Board Member Petroff commented that he found it a little odd
that the mining permit had been approved without a condition regarding rezoning of the property.
Chairman Rawl stated he had heard a lot of good evidence from both the applicant and those in
opposition to the conditional rezoning regarding its appropriateness. He commented that in regard
to the sixty-foot right-of-way that the applicant might consider limiting the road to a width of twenty
feet and locating the road as close to the GE property line as possible, leaving the remaining forty
feet as a buffer to the residential properties in Wooden Shoe subdivision. If the applicant could
come to an agreement with the residents to pave the section of the road that started and ended
fifty feet on either side of the residential properties that adjoin the road, it may address one of the
most vocal objections many residents had about the request, that the trucks traversing the haul
road would negatively impact their property. Chairman Rawl added that the applicant could take it
a step further and build a six-foot high berm and put vegetation on top of that to provide a forty-
foot wide natural buffer between where the trucks would travel and the residential properties. If
the applicant also paved that section of road, it would mitigate the issue of needing to water the
road to keep the dust down.
Chairman Rawl stated he understood the proposed sand mine negatively impacted the surrounding
property, but it was for a limited amount of time. It was not going to be a 50‑year operation that
created a lot of impervious surface; it had a lifespan. If houses were built on the property, residents
would still hear trucks and construction traffic, and that timeframe would eclipse the potential
three-year period presented by the applicant. Chairman Rawl stated that New Hanover County had
traffic issues in many cases because this material was needed in the area for roadway improvements
and new building infrastructure. Those trucks were having difficulty traveling forty miles down the
road to obtain the material and coming back in through our major thoroughfares that already had
traffic issues. He had witnessed a fair amount of truck traffic coming from the Castle Hayne
roundabout when he travelled that road earlier that day. Chairman Rawl stated the applicant had
addressed the safety and health concerns that surround the mining operation itself, but for the most
part, those in opposition had expressed concerns about the truck travel up and down the road so
he would urge the applicants to diligently study and listen to the residents’ concerns, and satisfy
those concerns because he did think those issues were solvable.
Page 23 of 38
Board Member Ted Shipley stated that rather than discussing conditions to be tacked onto this, he
would speak to the law and what has been presented. In regard to the rezoning, there were only
two elements, that the proposal be consistent with the purposes and intent of the New Hanover
County Comprehensive Plan and be reasonable and in the public interest, and the applicant had
proven that. However, the standard for a special use permit was much higher. All four factors had
to be proven and material and substantial evidence had to be shown to support that, and the
opponents must also present that. He stated, in this case, the opponents had presented material
and substantial evidence to refute the applicant's position. The two factors that factored into his
decision were: Finding 1: The board must find that the use will not materially endanger the public
health or safety where proposed and developed according to the plan; and Finding 2: The board
must find that the use meets all required conditions and specifications of the zoning ordinance. Board
Member Shipley stated Mr. Elkan had provided evidence to support the opponents’ case, and based
on the evidence presented, he couldn’t find for factors one or two to support the special use permit;
therefore, he would be voting for the rezoning but against the special use permit, accordingly.
Vice-Chairwoman Girardot said she agreed, noting that her biggest concern was the truck traffic -
160 trucks, plus the watering trucks, traveling up and down that road every three minutes every day
behind the houses, with the vibration, dust, particles from diesel, and those things. She commented
that there may not be any direct impact on the value of the homes in that area, but she did think
the length of time properties were on the market would be impacted, and she did think it would
also be negatively impacted by the truck traffic if someone were considering buying that property.
She stated understanding that sand was needed for new construction and new roads being built in
this region, and she was reluctant not to be able to provide that; however, she could not support
the special use permit at this time because of the impact it would have on those residents whose
properties abut the haul road.
Board Member Ernest Olds stated agreement with Mr. Shipley. From a technical standpoint, he
didn’t have enough reasons to not vote for the rezoning, but he didn’t believe that the proposal was
in the public interest. He’d heard too many questions about environmental concerns. He said he
was not an environmental scientist and wasn’t sure so he didn’t feel he could absolutely believe
that those matters had been taken care of. In regard to the road, he thought it was incumbent on
the applicants to identify the mitigation features we would agree to offer. If that were the case, he
might feel differently that it would provide a buffer and assurance for the neighborhood that their
property would be protected the way it should be protected given the nature of this operation. He
stated he was not inclined to vote in favor of the special use permit.
Board Member Jeffrey Petroff stated he would somewhat agree. The applicant had made their case
in regard to the rezoning. He felt the application and the environmental studies were sufficient and
explored the item very well. He did have concerns with the access road, the haul road. He did think
it was an issue that could be solved, but without that being presented to the board, he couldn’t
approve the special use permit.
Board Member Allen Pope stated he concurred with almost every comment from the board
members.
Page 24 of 38
Hearing no further discussion, Chairman Rawl entertained a motion from the planning board.
MOTION: Board Member Ted Shipley MOVED, SECONDED by Board Member Jeffrey Petroff to
recommend approval of the rezoning as the Board finds this request for a zoning map amendment
of 63.02 acres from RA district to a Conditional Use I‑2 District, as described, was:
1. Consistent with the purposes and intent of the 2016 Comprehensive Plan because the
property was classified as Commerce Zone, a place type that encourages Light and
Heavy Industrial uses; and was
2. Reasonable and in the public interest because the proposed mining operation site was
located adjacent to existing Heaving Industrial zoning and would provide employment
opportunities. Additionally, the mining operation site was located approximately 1.5
miles from the existing single-family subdivision. However, truck traffic generated by
the operation could be heavy at times, and without sufficient mitigation could impact
nearby homes.
The Planning Board voted 5-1 to recommend approval of the rezoning portion of Rezoning Request
Z18-19. (Ayes: Olds, Petroff, Pope, Rawl, and Shipley Nay: Girardot).
Chairman Rawl asked the applicant, Attorney Coggins, to approach and state whether he agreed
with staff’s findings of fact and any conditions proposed to be added to the special use permit.
Attorney Coggins stated agreement with the staff’s findings of fact. He then requested a five-minute
recess to consult with his client.
Chairman Rawl announced a five-minute recess.
RECESS
Chairman Rawl called the meeting back to order and recognized the applicant.
Attorney Steve Coggins thanked the board for allowing time to confer with the applicant team on
this important issue. He stated the applicant would agree to a condition to pave the one half‑mile
section shown on the slide presented by Mr. Schuler and install a vegetative buffer and wooden
fence along that half-mile stretch.
Chairman Rawl stated the board appreciation for the applicants’ submittal of those conditions and
yielded to the planning board’s legal counsel regarding the proposed conditions.
Deputy County Attorney Huffman confirmed that any proposed conditions could be attached to the
special use permit if Mr. Coggins wished to move forward with the special use permit and add his
own self-imposed conditions.
Page 25 of 38
Chairman Rawl asked Attorney Coggins to specify exactly what those conditions would be and if any
conditions would be changed based on what the applicant had already submitted, for example, the
length of the roadway that would be paved and the specifics on the proposed buffering of
vegetation and/or fencing.
Attorney Coggins stated he wasn’t aware that he could provide the specifics, but it would be survey
specific. Attorney Coggins stated they had a 60‑foot right‑of‑way and ditch. It would include paving
that one-half mile section, doing it as close as possible to the GE property line, which would allow
sufficient room for the applicant to place next to that vegetative visual and sound buffers there.
Then, next to that going towards the property, installing the wooden fence.
Chairman Rawl stated there were two conditions that were now attached to the special use permit.
He then entertained a motion from the board members.
Board Member Allen Pope commented that it would have been nice if the applicants had added
these conditions prior and included them with the submittal. He would almost prefer the applicants
to request a continuance and come back with a specific plan showing what they intended to do. He
said he had Mr. Coggins’ word and the applicants’ word, but their interpretation and his
interpretation may be two different things.
Following a brief discussion, Deputy County Attorney Huffman stated if the planning board wished
to approve with the self-improved conditions, the applicant could do a better job before it got to
the commissioners, but if the planning board wants the plan to be more refined before they vote
on it, they could make a motion to continue the item to another meeting. She agreed with Mr. Pope
that, at that moment, the plan didn’t provide the specifics of the proposed conditions regarding the
buffers, etc.
Vice-Chairwoman Girardot stated she was reluctant to approve anything on the fly. Like Mr. Pope,
she would prefer that the applicant request a continuance, and have a meeting perhaps with the
residents to work out a plan that would be acceptable to both parties; then, come back with that
plan to the planning board. She stated she would suggest, for example, including certain holidays in
the restriction regarding the days of operation for the mine. She thought there was more work to
be done, perhaps in concert with the residents, prior to the board making a decision on the proposal.
Attorney Coggins requested a continuance of the conditional rezoning request to the March
planning board meeting.
Chairman Rawl entertained a motion on the continuance request.
MOTION: Vice-Chairwoman Donna Girardot MOVED, SECONDED by Board Member Jeffrey
Petroff, to continue the special use permit portion of Rezoning Request Z18-19 to the March 7, 2019
Planning Board meeting.
Page 26 of 38
The Planning Board voted 6-0 to continue the special use permit portion of Rezoning Request Z18-
19 to the March 7, 2019 Planning Board meeting.
Item 2: Special Use Permit Request (S18-06) – Request by Williams Mullen on behalf of the
property owner, Arab Shrine Club H Corp, for a special use permit to develop a
telecommunications tower on 4.37 acres of land located at 4510 S. College Road.
Witnesses were sworn in by Deputy County Attorney Sharon Huffman.
Planning Manager Kenneth Vafier provided information pertaining to location, land classification,
access, level of service and zoning; showed maps, aerials, and photographs of the property and the
surrounding area as included in the following staff report.
Mr. Vafier stated that this was a special use permit application for a telecommunications tower
engineered to accommodate up to six providers. There would also be an associated equipment
storage area with carrier leased areas at the base of the tower site. The tower site was at 4510
South College Road, which was the existing Wilmington Arab Shrine Club facility located at the
intersection of South College Road and Jasmine Cove Way. It was across from Mohican Trail north
of Monkey Junction.
The site was zoned R-15, as was the general vicinity of the site except for one small area, which
was within the City of Wilmington's jurisdiction. To the north, the project site was bounded by
Johnson Farms, a single-family residential development was accessed by Pine Hollow Drive. To
the immediate west of the site was Jasmine Cove subdivision. A separate parcel, Jasmine Cove’s
open space area, consisted of a walking trail, playground equipment and other recreational
amenities. Jasmine Cove had duplex/triplex units within the subdivision. To the south of the site
were some institutional uses. He also pointed out nearby a Korean Baptist Church and Global
River Academy and Church. Further south was Saylors Watch, a multi-family development.
Across from the site to the east on College Road was vacant property, as well as single-family
residential on Mohican Trail and Tanglewood. Across from Jasmine Cove Way was an open space
area owned by the shrine club. An aerial photograph showed the site with the location of the
proposed towel highlighted by a star. There were currently two carports housed on the proposed
tower site, which would be relocated south of the property. Properties north of the site along
Pine Hollow Drive in Johnson Farms ranged from approximately 320 to 350 feet from the tower
base. To the west in Jasmine Cove, properties were approximately 380 to 400 feet from the tower
base. The Korean Baptist Church was approximately 400 feet from the tower base, and the
nearest residences to the east were over 600 feet from the proposed tower base.
The setback ring, the required setback from a residential property line or zoning district
boundary, was depicted on the site plan. It was 154 feet to the southeast to Jasmine Cove Way
and 158 feet to the west to the Jasmine Cove HOA parcel. This proposal would meet the minimum
setback requirements and the zoning ordinance. The three bays shown are carports that would
be relocated and a third one would be added. Access to the site would be provided via a new
access easement to the tower site from Jasmine Cove Way over a portion of the existing entrance
Page 27 of 38
drive and parking lot. A new asphalt driveway would be constructed on the southern portion of
the property to access the relocated carports. The proposed tower was anticipated to generate
less than one peak hour trip per day or less than five per month, so it would have virtually no
impact on traffic to the nearby road network. A revised NCDOT driveway permit would be
required to connect the new use to Jasmine Cove Way, an existing public street.
The site was free of environmental features, such as special flood hazard areas and wetlands and
did not possess any known conservation, historic or archaeological resources. It had access to
water and sewer through the Cape Fear Public Utility Authority, but connections were not
necessary for this use. The detailed plan view of the equipment storage area reflected three
boxes that represent carrier lease areas that would contain cabinet‑like structures for indoor
equipment storage. Outdoor storage in the equipment area would not be permitted by
provisions in the zoning ordinance. The area would be secured by an 8‑foot high vinyl fence with
an access gate at the end of the new proposed driveway. A close-up plan view of the proposed
landscape buffer showed that a 25‑foot buffer was proposed on three sides. On the north side,
the existing shrine club building would provide 100% opacity and did not allow for planting, thus
the applicant had provided a landscape buffer certification that stated that in the event the
building was removed or otherwise did not provide adequate buffering, the site would be
supplemented with plantings as necessary. In consultation with the county legal office, staff had
determined that was sufficient to meet the ordinance requirement. There was an outbuilding on
the existing structure, and further up out of the plan view was a larger main facility that would
provide the adequate opacity. A graphic showing the tower profile reflected a 150-foot tall pole
structure with a 4-foot lightning rod on the top. The antennas for each provider would be housed
within the structure itself and would not be visible.
Mr. Vafier presented several photographs of the site from various vantage points. They showed
how the building extended east along the tower compound site area to provide the buffer. The
photos reflected the tower and equipment storage area, site, the HOA parcel behind the site,
and some structures in Jasmine Cove. For the record, a series of photographs were also
presented which were provided by the applicant in their required photo simulations.
The 2016 Comprehensive Plan classified the site into two place types, Community Mixed-Use and
General Residential. The existing shrine club structure, tower, and equipment storage area were
located within the Community Mixed‑Use place type, while the western portion of the parcel
was within the General Residential place type. The comprehensive plan did not specifically
address the location of telecommunications towers and other infrastructure; however, the plan's
implementation guidelines aimed to support business success, workforce development, and
economic prosperity. Infrastructure, including telecommunications towers would be appropriate
within these place types when located appropriately, thus, staff had concluded that the proposed
telecommunications tower was generally consistent with these place types in the 2016
Comprehensive Land Use Plan.
Mr. Vafier report that there are four required conclusions for a special use permit approval. Staff
had provided findings of fact that pertained to each of the conclusions which were included in
Page 28 of 38
the staff report. First, the use would not materially endanger the public health or safety if located
where proposed and developed according to the plan as submitted and approved. Second, the
use met all required conditions and specifications of the zoning ordinance. In Section 63 that
governs special use permits, there were several provisions that detailed compliance with other
agencies such as FCC, FAA, setbacks, and co‑location requirements. Staff had reviewed in detail
these submissions with these requirements and had found that all requirements of the zoning
ordinance had been met. Those details are included in the staff report. Mr. Vafier offered to
answer any questions the board may have pertaining to those requirements. Third, the use would
not substantially injure the value of adjoining and abutting property or the use was a public
necessity. Fourth, the location and character of the use if developed according to the plan as
submitted and approved would be in harmony with the area in which it was to be located, and
in general conformity with the plan of development for New Hanover County.
Planning Manager Vafier concluded the staff presentation and offered to answer questions from
the board.
Chairman Rawl asked if board members had any questions for Mr. Vafier.
Board Member Ted Shipley asked if the vacant land shown on the right side of Slide 90 was a
development previously approved by the planning board.
Planning Manager Vafier replied that a portion of that larger tract was approved by the TRC as the
Whiskey-Navajo tract. That part of the parcel remained vacant, and staff hadn’t received an
application of submittal yet for that property.
Chairman Rawl opened the public hearing and recognized the applicant.
Applicant’s Presentation
Tom Johnson of the Law Firm of Williams Mullen, 301 Fayetteville Street, Suite 1700, Raleigh, stated
he represented the applicant, Communications Tower Group, and introduced the applicant team of
David Hargrove of Communications Tower Group; Jeremy Wooster, of the tower engineering
professionals that designed the site plan; Graham Herring, who provided the photo simulations; and
David Smith and Michael Berkowitz, who did the property impact value analysis. Attorney Johnson
requested that the application and associated documentation already submitted and referred to in
the staff report be admitted into evidence in support of the application. Attorney Johnson stated
the applicant team concurred and accepted the findings in the staff report as part of the application,
as well as any conditions.
Regarding need, Attorney Johnson provided maps showing the need for the signal strength in this
area, noting the lighter green area showed this area of the county didn’t have adequate coverage.
Once the proposed tower was in place, the carriers associated with it would fill that coverage gap.
In terms of services, it came down to demand and need. The project would serve people who
typically no longer have land line services. The signal needed to be strong enough to get through
walls in residences and commercial buildings, which was more challenging in order to provide 911
Page 29 of 38
access. In addition, everything was moving toward data service, whether that was people working
from home or any number of other devices that were now using wireless services, including security
systems in homes. That signal strength didn’t exist in this location currently. He provided an aerial
showing the proposed location was in the busy part of the county from 17th Street to Monkey
Junction. As mentioned earlier, the development of nearby property would create more demand
on the system. He provided depictions of the future site, noting the reserved spaces in the
compound would house electronic equipment when other carriers came in as required. He also
provided depictions of the elevation and photo simulations. Attorney Johnson asked Appraiser
Smith to summarize his findings on the proposal’s impact on adjoining property values.
David Smith of Durham stated he was a state certified general real estate appraiser and had the MAI
and SRA professional designations from the Appraisal Institute, which was the most highly regarded
professional organization. He stated to consider the effect of the proposed 150‑foot mono-tower,
he researched the New Hanover County area and located a subdivision on Deer Creek, which was
off Myrtle Grove Road about three miles south of the subject property. This tower was about the
same height, three feet shorter but had a platform and antenna. The proposed tower would not
have antenna on it because it was a monopole. He located over 100 qualified sales in that
neighborhood and compared those to those that had views of the tower in either the front yard,
backyard or side yard or were close to the tower. Adjustments were made for any differences
between the different properties in the neighborhood. Appraiser Smith found that they all sold for
about the same per square foot price, which indicated that the tower down there had no adverse
effect on the houses in the subdivision. He noted the houses in the subdivision were very similar to
the houses that adjoined this property. He stated, based on that, it was his opinion that the
proposed tower would have no adverse effect on property values of houses in the immediate area.
The other properties in the area were vacant, so the properties most likely to have any adverse
effect would be the houses that back up to this site. Mr. Smith offered to answer any questions and
go further into his analysis at the board members’ request.
In response to Vice-Chairwoman Girardot’s inquiry regarding whether there was any difference in
length of time on the market, Appraiser David Smith stated he made the adjustments for length of
time on the market, date of sale, garages, bathrooms, square footages, etc.
Attorney Johnson stated Graham Herring was also present and could describe what he did in terms
of the pictures he took. He pointed out the infrastructure already in place along South College Road,
noting there were very tall utility poles up and down College Road. The tower was within existing
power lines, and it was the distance and perspective that changed the way things looked. The photo
simulations were done to show what it would look like when the tower was in place. The antennas
were hidden within the unipole to help with the visual impact of the tower. There was a lot of
infrastructure along College Road. Looking from Mohican Trail, there were many above-ground
power lines, and the simulation of the proposed monopole tower showed that the power line pole
looks taller than the proposed tower because the pole would be closer.
Attorney Johnson asked the Planning Board to find that the proposed special use permit met the
four findings based upon what staff has found in the application and the other information the
Page 30 of 38
applicant had submitted. First, the use wouldn’t endanger public health or safety. It would enhance
public health and safety because residents would have better access to emergency services because
there would be a stronger signal. There would be little to no traffic from this use. He pointed out
that state statute said specifically health impacts of radio frequency emissions were not to be
considered, and that was state and federal law because it was a licensed facility under the Federal
Communications Commission, so it must meet certain standards in order to be safe. That was why
federal law preempted it, and it had been codified in state law as well so that could not be
considered by this board as a health and safety factor. The proposal met the required conditions
and specifications as stated in Mr. Vafier’s report. Second, the use would not substantially injure
the value of adjoining or abutting properties. Appraiser Berkowitz was available to provide
testimony. Appraiser David Smith spoke earlier in regard to his report on property value impacts.
Both of those reports were in evidence and supported the opinion that the use would not
substantially impact the value of adjoining properties. The harmony factor was also stated in detail
in the report and was stated in Mr. Vafier’s report. Attorney Johnson said under existing state law,
if a use was allowed within a given district, if it was allowed as a special use in the zoning district,
the presumption was that it was in harmony because legislatively it had been determined to be
allowed as a special use. Attorney Johnson stated, based upon that information, he would ask the
Planning Board to find in favor and recommend approval of the telecommunications tower at this
location. He stated he and the applicant team were available to answer questions.
Chairman Rawl asked if board members had questions for the applicant.
In response to Board Member Ernest Olds’ inquiry, Attorney Johnson confirmed the monopole
tower could accommodate a total of four carriers. He added the number of carriers would not affect
the shape and configuration of the monopole because the antennas, wiring, etc. were located within
the monopole. Sometimes a carrier may need to use two positions. In response to Board Member
Olds inquiries, Attorney Johnson confirmed they could make a condition that the applicant continue
to keep the equipment within the tower’s design. He also confirmed the tower would be galvanized
steel in color and would end up being gray and blending in as well as anything else. Attorney Johnson
commented that if you painted it, depending on the weather conditions, it could result in the tower
standing out more, so they typically found that for maintenance and consistency, the galvanized
steel worked well. He stated a good example of a similar tower would be the telecommunications
tower at the Lutheran Church near the Pine Valley Fire Station in the City of Wilmington, located
further north on South College Road.
Board Member Olds commented that the monopole would certainly be a lot more attractive than
the antennas hanging off the side like so many others.
Attorney Tom Johnson commented that the comparison that Mr. Smith did was regarding property
values near a tower with the antennas because that was what was out there, but technology had
come a long way.
Board Member Jeffrey Petroff inquired if there would be a backup generator on this site, and if so,
what the noise level of the generator would be.
Page 31 of 38
Attorney Johnson replied that there would not be a generator on this site. What would typically
happen is that a generator would be brought to the site in the event it was needed. Generators
were sometimes installed initially, but sometimes they were not. He noted that if a generator was
permanently installed on a site, they were designed to be very quiet now and don’t make any noise.
Many times, they would be powered by propane so, in terms of smell, etc., it would be very minimal.
Attorney Johnson said he would like to reserve time for rebuttal.
Chairman Rawl asked if anyone else would like to come forward to speak in support of the
telecommunications tower. Attorney Johnson commented that he thought those signed up were
part of the applicant’s team.
Chairman Rawl opened the opposition portion of the public hearing.
Opposition Presentation
Michele Erich stated she lived on Turtle Dove Court right behind the park, which was right behind
the Shrine Club. She stated that most of her neighbors in her community did not receive a letter
because they were further behind her, but the neighbors on her street did, along with the adjoining
abutting neighborhood in Johnson Farm. She wished more people knew about this and could come
as well. She spoke in opposition to the proposal for several reasons. First, she thought the proposal
did have a public safety and health issue. She wasn’t concerned that the FCC has regulations. She
thought that was great and that all those agencies were wonderful to support us, but there was a
lot of research that showed it was really horrible and there was also research that showed there
were questions and that it could endanger the public safety and health. She felt there were too
many questions that were not answered specifically with enough scientific research to give the facts.
Ms. Erich stated she didn’t want to be a neighbor next to a pole that killed her. She stated second,
based on what was presented, she believed the proposal met the conditions required by the county
and the state. She said, third, the proposal would injure the value of their property. She would ask
how the tower would impact their current property values after it was up. It may not impact the
sale of properties when the tower was up down the street, neighbors to neighbors that could see
the tower or not, but she thought it would impact property values because she would choose not
to move into the neighborhood if there were a new tower there. She would have chosen a different
neighborhood, and she had been there for twenty years. Ms. Erich stated, fourth, she didn’t believe
the proposal was in harmony with the community, noting it was a residential community. They had
a park, which had a walking trail and open nature space behind their houses; it was part of the
neighborhood and children played there all the time, grandchildren and children that lived there.
Twenty years ago, their community was a much older community, but now it was a much younger
community with a lot of children. The neighboring community also had a lot of children. She
reported seeing many children as she walked and rode her bike through there. Those children would
be in the park, which was about 300 feet from the base of the tower, and she didn’t think that would
be safe for them. She commented that their residential neighborhood had some green, natural
space left and they would like to keep it and protect it. One of the residential neighbors and some
open space located on the south side of their neighborhood south of the shrine club and behind the
church was not mentioned. The neighborhood was entirely residential, except for the Shrine Club
Page 32 of 38
and the church. Ms. Erich stated in conclusion, in her opinion, the proposed tower should be located
outside of a neighborhood.
Deputy County Attorney Sharon Huffman stated that future speakers who might plan to speak
regarding safety, that in their mind there would be some effect on health or safety because of
radiation, etc. from the tower, should not do so because the Planning Board cannot consider that.
It was illegal to do so. Those speakers would be cut off.
Erik Graf stated he lived on Pine Hollow Road in the Johnson Farms subdivision and the proposed
tower would almost be in his backyard. He stated he was representing several neighbors who could
not be there due to prior commitments and the short notice about the proposal. Mr. Graf said they
had been down this road before. He said he couldn’t remember exactly when it was pursued before,
but he thought it was rejected. He wasn’t very involved with it. He was involved with other matters
they were dealing with in their neighborhood. He stated in doing a little research, it didn’t take him
very long to find out through the FCC and some other sites, that there were 37 towers, 13 registered
and 24 non‑registered, within four miles of his home, and 197 antenna towers. Those varied from
under 100 feet to towers over 200 feet. He asked that the first slide presented be shown on the
screen, which was an aerial photograph. He said the map showed it was just saturated with
residences and people who had homes like him. He pointed out the location of his home on the
map. He pointed out the location of an existing similar cell phone tower that hadn’t been mentioned
and was not depicted on the map. One of the photographs, which had an image of the Korean
church, showed that tower in the background, but it wasn’t mentioned. He pointed out there would
now be another tower there flanking their neighborhood, which was incredible to him. He then
pointed out the location of a power substation, noting they were flanked on all sides with cell phone
towers, utility poles, substations, power lines, etc. If you came out on one of the roads and looked
toward Monkey Junction, you could see two towers straight down the road. Those didn’t really
affect him, but he could see those too. He commented that having a tower on one side of their road,
and now another proposed tower that would be on the other side of their road seemed excessive.
He didn’t doubt any of the people here and what they were saying. They were the experts in this.
He said he was just a guy who lived on a street that would be affected by this, in his opinion. He said
he had talked to real estate agents about property values, and with all due respect to the gentleman
that spoke before, he was told that once that tower went up, it could affect his property value for
resale by ten to twenty percent. Like the woman who spoke before, he was curious to whether what
was said about property values in the other neighborhood was before the tower was up and then
versus what it was after. He’d read studies where 90% of people would not want to reside in a
residence where a cell phone tower had been put up.
Hearing an objection, Chairman Rawl stated he didn’t think they could object to Mr. Graf’s
opposition even though he isn’t an expert.
Eric Graf stated as a homeowner, they had all talked to people. He knew that if his same home was
located next to two cell phone towers and a power station or was located somewhere else, someone
would not buy his home but would buy the same house somewhere else. He stated he had nothing
to base that on, just human nature and the people he had talked to. He stated there was a perceived
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concern about the health effects. He also stated surprise that no one from the Shrine Club was
present at the meeting. He thought that many more people would be interested in this tower if they
had the time and knew about it and could come out. This was a situation where the residents already
have cell phone towers around them. Mr. Graf stated the proposed tower would increase the value
of the Shriners’ property, but in his opinion would decrease the value of his residence and the
people’s residences around it.
Kate Griffin stated she lives 400 feet from the proposed tower. She didn’t care if it was beautiful
and noted the planning board was not allowing her to speak about what she cared about. She found
that totally insane. No one had mentioned the fact that on this tower was also going to be something
relatively new; it would be a 5G installation. She said, as she has read, that was an installation which
was not really for people, but for machines. It had a very fast turnaround time, and it would help
those driverless cars and things like that. She stated the added thing about it, as she has read, was
the rapidity of the signal going out. The 4G service had a 50-millisecond delay compared to the new
5G service, which had a 1-millisecond delay. She commented that the signal was very fast, but it
brought a whole bucket of trouble as far as she had read. It then required a whole bunch of little
antennas to pass along the bits of information. Ms. Griffin stated she had read that many smaller
cell towers were placed close together, but with more input and output ports on the 4G towers that
we see, the ones that were there, those would be small, and we won't realize they're there. This
would likely mean wireless antennas every few feet on every lamppost and utility pole in a
neighborhood emitting RFR, radio frequency radiation. She commented they would be small, we
won’t see them, and we’ll forget about them just like we forget about the dangers of cell phones
and brain tumors and so on. Ms. Griffin said she has also read about the nonlethal weapons program
active denial system, in which the military used a 5G system of crowd control, called active denial
system. This power going out of the 5G tower was something they used to hit people they didn't
want to be there. It made their skin very warm and could blister their skin. She wondered if there
had been injuries associated with the active denial system, etc. She said the board wouldn’t let her
talk about the thing she wants to talk about, and that made her even angrier because that was
absolutely ridiculous. Ms. Griffin said that what she was afraid of was what the tower was going to
do to her, her health, to children, and to animals and plants, as well as birds being disoriented by it,
and deer and red foxes. She said she had a lot of information that she couldn’t talk about.
Chairman Rawl opened the rebuttal period and recognized the applicant’s attorney, Tom Johnson.
Applicant’s Rebuttal
Mr. Johnson asked Appraiser David Smith to respond to the inquiry regarding property values that
Ms. Erich had raised regarding whether the home values in Deer Creek and surrounding area before
the tower existed were compared to the values of the houses in and around that neighborhood
after the tower was installed.
Appraiser Smith stated his research was conducted based on the tower already being up. He looked
at the properties that could see it and those that couldn’t see the tower. He strictly looked at the
ones that could see it and ones that couldn't see it and the ones that were close to it and the ones
that weren’t close to it.
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Attorney Johnson stated he wanted to reiterate one more time, as County Attorney Huffman had
already spoken to, health and safety of radio frequency was not to be considered per state and
federal law. The county attorney was preventing testimony about it because of the way the law was
written. Attorney Johnson stated he did object to any of that which was spoken to not by experts,
including impact on property values, because laypeople under North Carolina law cannot testify as
to the impact of this particular use on the value of their property. They would need to have an
appraiser.
Deputy County Attorney Huffman noted they could speak to it; it was just not sufficient to rebut the
expert testimony.
Attorney Johnson replied that was correct. The statute said you must have that for it to be
competent evidence, and statutorily, it was specific that would not be competent evidence. It was
not enough to rebut because it wasn’t competent.
In regard to a speaker’s comments about another tower, Attorney Johnson explained that it was
not a tower. It was actually a utility pole that had antennas on top of it, which was an attempt by
the carriers to try to get coverage in the area, which is not working. He stated the applicant included
as part of their application that those poles are not sufficiently strong. They’ve done this with Duke
Power and had the analysis done. It was not sufficient to support the antennas that were needed
now with the additional requirements for data and/or voice, because a lot of that equipment was
now up on the tower and not on the ground. The radios had been moved up on the tower, which
really made it more difficult. He also stated the size of the antennas had grown because of the need.
Attorney Johnson said that 5G would require a lot of small cells. He noted a lot of small cells had
gone up within very active areas like shopping malls, and even in arenas, smaller towers had been
put in. He explained the proposed tower is what's called a mega site. This was the equivalent of the
high voltage electrical transmission lines and was the larger infrastructure. As you got closer and
closer and needed a stronger signal, those were smaller like the utility lines on poles or underground
in your neighborhood. Attorney Johnson said this proposed tower was called a macrosite, which
needed to be taller to get the signal out to the other sites that may eventually cover and need a
stronger signal to do things like driverless cars and the internet of things, where they are even using
it for tractors and harvesters, and agricultural uses. In terms of the number of towers, there were a
lot of towers in the Wilmington area because it was a growing area and had a growing population.
As population increased, just like you needed other infrastructure, you needed more wireless
infrastructure. He noted there was a need in this location, as shown earlier on one of the slides.
Having towers in other locations wouldn’t solve the problem in this location like this tower was
intended to do. He explained that what had changed over a period of time was that they’d been
able to provide the services in a way that was less impactful on the community because antennas
are enclosed within the poles. Attorney Johnson offered to answer any other questions the board
members may have.
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In response to Vice-Chairwoman Girardot’s inquiry, Attorney Johnson confirmed that co-locating
equipment on the power poles was an attempt to prevent having to put another tower there.
Unfortunately, there wasn’t sufficient structural strength in the power poles to accommodate the
equipment. For that reason, they needed to install a tower that was structurally safe, which was
important to the community and was a health and safety matter. He added that they were enclosing
the antennas within the canisters of the poles to accommodate the concerns about the visual nature
of it.
In response to Chairman Rawl’s inquiry about potential advancements in technology that may
change the functionality of the pole and possible visual impediments, Attorney Johnson stated there
would not be visual impediments. They were installing unipole towers with antennas in the canister.
Regarding technology, there was more antenna loading to provide a stronger, more reliable signal.
Equipment hasd been moved up on the tower because carriers now used fiber to get the signal up
to the antenna. They used copper in the past, but fiber was more efficient. The radios were now on
the tower, which created more loading on the tower, which was part of the technology change. All
of that had been done, and for towers located closer to residential areas, the antennas were hidden
to make the towers less visually intrusive.
Chairman Rawl inquired about a more detailed slide of the site plan reflecting the vegetation and
vinyl fence proposed at the base of the proposed pole, noting the site plan he had didn’t appear to
allow for any planting around the site.
Attorney Johnson stated they weren’t planting vegetation there, but were promising to do it in the
event the building was ever removed. There was vegetation on the other side; however, they can’t
put vegetation in front of the gated access point. He noted the fence willould be a faux wood, private
fence that couldn’t be seen through.
Jeremy Wooster, of Raleigh, NC, explained the fence had metal posts running horizontally with the
concrete foundations vertically, and it would have faux wood slats in front of them. The metal posts
wouldn’t be visible from the outside, but standing inside you could see the metal posts. There wasn’t
a separate chain link fence inside the faux wood fence.
Attorney Johnson stated that information is also shown on Page C-7 of the site plans, which were
included with the staff report. The fence would consist of horizontal steel poles with the planks
attached to it like on other privacy fences in neighborhoods. Vinyl was used because of the
maintenance.
Mr. Vafier clarified that the drawing in question was not included in the staff report. He delivered
the packet of engineered drawings to Deputy County Attorney Huffman to enter the packet of
engineered drawings into the record.
Attorney Johnson stated that the drawings may not have been in the staff report, but were included
in the application and related materials that were submitted and were in the published record.
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Chairman Rawl asked if the barbed wire would be exposed and have the visual appearance of
barbed wire. He noted, based on the drawing, it appeared that there was an 8-foot privacy fence
and on top of that a spindle of another 4 feet of barbed wire.
Attorney Johnson confirmed Chairman Rawl was correct; however, if that was a concern, the
applicant could design it another way and put the barbed wire inside and below the faux wood
fencing. The barbed wire was used for security reasons.
Chairman Rawl commented that what was appealing to the eye was usually appealing to a buyer.
He noted the barbed wire may be an intrusive look and inquired if the vegetation that surrounded
the fencing could be elevated high enough to shield the barbed wire in order to combat that visual
impact.
Attorney Johnson commented that the vegetative buffer required by the ordinance would quickly
cover up the barbed wire. The applicant was fine with installing the wire so that it was not visible,
noting there was a method they could use to do that. He confirmed the applicant could add that as
a condition if it was a concern.
Chairman Rawl said his comments were based on the community concerns and comments stated
earlier in the public hearing.
Attorney Johnson stated that moving the barbed wire lower inside the fencing takes up a little space
on the inside but wouldn’t interfere with the equipment location. Attorney Johnson said he was fine
to agree to make that a condition.
Hearing no further questions for the applicant, Chairman Rawl stated that the opposition’s five-
minutes rebuttal period was open for those who had signed up to speak in opposition and had been
sworn in.
Opposition’s Rebuttal
Michele Erich commented that her other concern was that the Shrine Club hasdn’t been a good
neighbor over the past year or so. Many people from her neighborhood had called the Sheriff’s
Department several times because of violations of the noise ordinance due to music continuing past
the allocated time.
All persons being given the opportunity to speak during rebuttal, Chairman Rawl closed the public
hearing and opened the planning board discussion period on the item.
Board Discussion
Chairman Rawl commented that compelling arguments had been presented by the opposition, as
well as expert testimony by the applicant. One could almost argue that poor cell service in a
neighborhood could be a worse determining factor of property value than a cell tower located
within eyesight. He noted that was not coming from any professional standpoint. It was a
technological age where a lot of data was required in order to stay at the cutting edge of technology,
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and it seemed you must make some concessions. It was unfortunate that it was not always beneficial
to those that surround it from a visual standpoint. In this instance, there was a four-lane corridor
that had high electrical lines. There were other cell towers down the corridor, and it did align itself
with other tall structures for infrastructure needs that line the roadway. He said he understood the
need for it, but it was unfortunate it must be at such a height to provide service that it made it a
deterrent for the human eye.
In response to Board Member Jeffrey Petroff’s inquiry regarding an existing stormwater permit for
the site, Mr. Vafier replied that there was not an existing stormwater permit and noted the
proposed impervious area is approximately .29 acres. The applicant has been in contact with county
engineering staff, who had advised that if over 3,000 square feet impervious was proposed, there
would be no exemption from the stormwater permit, thus stormwater controls may have to be
considered. That requirement would be addressed at the time of development review and approval.
Attorney Tom Johnson stated the applicant concurred with Mr. Vafier’s statements, noting staff had
made the applicant team aware of that requirement, and they had held discussions with the county
engineer and were very aware of the requirements.
Hearing no other comments from board members, Chairman Rawl stated a special use permit, if
denied, may only be resubmitted if there had been a substantial change in facts, evidence or
conditions of the application as determined by the Planning Director. He asked Attorney Johnson if
the applicant would like to continue the application to a future meeting or proceed with this board
deciding to recommend approval or denial of the application.
Attorney Johnson confirmed he wished to proceed with a decision by the planning board.
Chairman Rawl entertained a motion on the special use permit.
MOTION: Board Member Ted Shipley MOVED, SECONDED by Board Member Ernest Olds, to
recommend approval as the Planning Board found this application for a special use permit met the
four required conclusions based on the findings of fact included in the staff summary.
During discussion on the motion, Vice-Chairwoman Donna Girardot requested two conditions be
added to the motion. First, the three- to four-foot spindle of barbed wire above the 8-foot tall fence
shall be moved lower and relocated inside the privacy fence so it would not be visible to passersby.
Attorney Johnson stated the first condition was acceptable to the applicant, noting the barbed wire
could be installed to slope down inside the compound rather than above the privacy fence.
Vice-Chairwoman Girardot’s second condition was that 100% opaque buffering be provided as soon
as possible. She stated, in the past, initial buffering plantings were 3- to 4-feet trees that may
provide 100% opacity after many years.
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Mr. Vafier explained that in this case the ordinance required a landscape buffer with a base width
not less than 25 feet and providing 100% opacity, but it did not go into detail about number of
plantings, type of plantings, or length of time to achieve 100% opacity.
Following a brief discussion between Vice-Chairwoman Girardot, Attorney Johnson, and Mr. Vafier
regarding the ordinance requirements, and available vegetative options for providing 100% opaque
buffering on the site, Vice-Chairwoman Girardot withdrew that proposed condition, stating she
would count on Attorney Johnson to ensure 100% opacity would be provided to the extent possible.
Attorney Johnson agreed, to the extent possible, the applicant would install the largest vegetation
they could find, and reiterated the applicant’s agreement to the proposed condition on the barbed
wire.
MOTION: Board Member Ted Shipley MOVED, SECONDED by Board Member Ernest Olds, to
recommend approval as the Planning Board found this application for a special use permit met the
four required conclusions based on the findings of fact included in the staff summary.
Condition:
1. Barbed wire on the tower compound area security fence shall be angled inward or
otherwise obscured to provide visual screening from the exterior of the site.
The Planning Board voted unanimously (6-0) to recommend approval of Special Use Permit S18-06
with one condition.
With no other items of business, the meeting was adjourned at 9:40 p.m.
Note: The above minutes are not a verbatim record of the meeting.