03 MARCH 2019 PB MINUTES - APPROVED
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Minutes of the
New Hanover County Planning Board
March 7, 2019
The New Hanover County Planning Board held a regular meeting on Thursday, March 7, 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-Chairman Ken Vafier, Planning & Zoning Supervisor
Paul Boney (Present for Item 2 only) Brad Schuler, Senior Current Planner
Ernest Olds Rebekah Roth, Senior Long Range Planner
Jeffrey Petroff Sharon Huffman, Deputy County Attorney
Allen Pope
Planning Board Absent:
Edward “Ted” Shipley, III
Chairman Jordy Rawl opened the meeting and welcomed the audience to the public
hearings.
Planning & Zoning Supervisor Ken Vafier led the reciting of the Pledge of Allegiance.
Chairman Jordy Rawl reviewed the procedures for the meeting.
Chairman Rawl stated Rezoning Request Z18-19 was continued from the January Planning
Board meeting so the Planning Board will hear only specific items related to the construction of
Sledge Road and the traffic that will potentially traverse it. Chairman Rawl then announced that
property owners adjacent to Sledge Road, their representatives, and those representatives who
planned to speak on the applicant’s behalf should come forward to be sworn in by Deputy County
Attorney Sharon Huffman.
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 their January 10, 2019 meeting, the Planning Board
recommended approval of the rezoning request (5-1) and continued the item to their March 7,
2019 meeting prior to taking action on the special use permit request.
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Senior Planner Brad Schuler provided a brief overview of what occurred at the January
10, 2019 Planning Board meeting and following that meeting to the March 7 meeting. He stated
the item was considered by the Planning Board at their January 10, 2019 meeting. At that
meeting, the board was presented with testimony and evidence regarding the proposal from
both the applicant and the opposition for approximately one hour and thirty minutes. After
hearing that testimony, the Planning Board closed the public hearing and began the discussion
regarding the application. The Planning Board voted to recommend approval of the rezoning,
finding it was consistent with the comprehensive plan, and reasonable and in the public interest.
However, the Planning Board then continued the item before taking action on the special use
permit portion of the application, and requested that the applicant provide more specific details
regarding the improvements proposed for Sledge Road. Based on that direction, staff organized
a meeting on February 19, 2019 between the applicant and the owners of the properties directly
abutting Sledge Road. At that meeting, the applicant provided a proposed site plan showing
specific improvements to the road, and after receiving feedback from the residents at that
meeting, the applicant revised that plan, resulting in the current version of the site plan shown.
Senior Planner Schuler reported the applicant would describe the specific improvements
being proposed; however, staff had created slides highlighting the notable improvements should
the board need to reference those during the discussion. The applicant has provided updated
conditions they are proposing be placed on the permit. Those conditions include not operating
the mine on certain holidays, enforcing a speed limit, complying with the applicable storm water
rules, and maintaining a culvert under Sledge Road.
Senior Planner Schuler stated the Planning Board must make the four required
conclusions presented on the slide in order to recommend approval of the special use permit.
The Planning Board must use all substantial and competent evidence presented tonight and at
the January meeting when making that decision on the special use permit.
Chairman Jordy Rawl stated the Planning Board would re-open the public hearing to
consider additional testimony related to the proposed improvements on Sledge Road. There was
a very lengthy discussion at the January meeting that included many different issues surrounding
the proposed sand mine. Tonight, the applicant, and residents who have property adjacent to
Sledge Road, will have fifteen minutes each, in support and in opposition, to provide comments
related to Sledge Road.
Chairman Rawl re-opened the public hearing and recognized the applicant.
Attorney Stephen Coggins, applicant on behalf of the owner, Hilton Property Owners
Limited Partnership, stated appreciation for the Planning Board allowing them a continuance to
retain the services of Norris and Tunstall to prepare the plans and site plans reflecting the specific
improvements. He stated John Tunstall was present to address questions. The applicant team
has been in communication with various neighbors and has made various improvements. He
provided a quick overview of those improvements, which include paving Sledge Road twenty-
feet wide, along where the residential properties are and the horse farm that is located towards
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the end, with eight inches of ABC stone atop the subgrade with three inches of NCDOT-grade
asphalt on top of that. That subgrade will be tested before the actual installation of the stone
and asphalt to determine its appropriateness for the kind of equipment that would be there. In
any event, it's suitable for use of heavy equipment under these circumstances. The road will be
approximately 2,500 feet long. The applicants will install a wooden fence along the abutting
residential lots that will be ten feet high with posts embedded in concrete four feet in depth.
There will be a gate door entrance at a beach lot where there are existing groundwater testing
wells that he understands have been placed there by GE (General Electric) to monitor whether
there has been any migration of the pollution that came from their operations. At the horse farm,
the applicant would use an existing fence, berm and ditch. He noted it’s an impressive fence,
berm and ditch that would provide some buffering. In addition, they would provide them with
vegetative buffers. This would be at 5 foot gaps at the monitoring wells for ingress and egress,
and would be 3‑gallon wax myrtles, Green Giant purple vitae or Bermuda Springs holly, single-
row planting where the horse farm is, but staggered planting where the residences are located
to provide that additional buffer. He showed photos of the fence, berm and ditch where the
horse farm is located. He stated there would be an additional five feet of buffer between the
edge of the pavement and the vegetative buffer, which would be a total of 25 feet.
Attorney Coggins stated the applicant would agree to repair damage to any adjacent
drinking wells that may be caused by construction of the road. The entrance gate as you come
onto Sledge Road would be moved an additional 1,000 feet inward away from Castle Hayne Road,
which would allow as many as thirty trucks, if necessary, to wait in line there. The idea is to
prevent a backup of trucks onto Castle Hayne Road. He said they would have to make some
NCDOT driveway entrance improvements anyway, but the gate would be moved in further to
address that aspect.
Attorney Coggins stated the operating hours for the sand mine would be Monday through
Friday from 8:00 a.m. to 5:00 p.m., and closed on those major holidays. There would be a 15-
mile-per-hour speed limit on Sledge Road, and the applicant would agree to maintain the road
and the culvert, and would comply with any storm water rules. Attorney Coggins stated, in
conclusion, those are the improvements that the applicant is pleased to agree to. He noted that
Mr. Tunstall was present to answer any questions the board may have, and he would like to
reserve any remaining time for rebuttal.
Chairman Rawl inquired if Planning Board members had questions for the applicant.
In response to Vice-Chairwoman Girardot’s inquiry regarding what type of noise reduction
a 10-foot high wooden fence would provide, Attorney Coggins responded that he couldn’t
provide specifics in terms of a scientific analysis, but he does know there are studies that show a
solid wood fence has sound absorption qualities to diminish noise.
Vice-Chairwoman Girardot commented regarding the applicant’s agreement to maintain
the road that she would assume there would be potholes, etc. with that many trucks using the
road over a five- or six-year period.
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Attorney Coggins agreed potholes would be expected and confirmed the applicants are
prepared to maintain Sledge Road.
In response to Board Member Ernest Olds’ request that the proposed paved area of
Sledge Road be highlighted on the site plan to provide a visual of the 2,500-foot long road,
Attorney Coggins pointed out that the paved surface would begin where the first residence is
encountered as you turn onto Sledge Road from Castle Hayne Road, goes up beyond those
residences and along the horse farm, and extends approximately 200 feet past where the horse
farm fence is located. He stated that was worked out in negotiations with the owner of the horse
farm to accommodate his needs there.
Board Member Olds inquired how long the sand mine will be operational and need to use
Sledge Road at that higher level of intensity.
Attorney Coggins replied they don’t know precisely how long the sand mine will be
operational, because that depends on the demand. Given the volume of material that is there, if
it has the kind of traffic projected of sixty to eighty trucks a day going in and out, it would be
probably three years. However, if the demand is low, it could take longer.
In response to Board Member Jeffrey Petroff’s inquiry about the status of a driveway
permit for Sledge Road, Attorney Coggins stated the applicant does not have a driveway permit
yet for Sledge Road, and would have to apply for one and meet all NCDOT specifications.
In response to Board Member Petroff’s inquiry regarding the requirement of a traffic
impact analysis for the proposal, Attorney Coggins stated a traffic impact analysis would not be
required.
Hearing no other questions for the applicant, Chairman Rawl opened the opposition
portion of the public hearing first to residents and property owners adjacent to Sledge Road. In
response to Vice-Chairwoman Girardot’s inquiry, Chairman Rawl confirmed that staff would
highlight speakers’ properties on the map for the board’s information, as they provided their
name and address for the record.
Opposition Comments
Waylon Webbon stated he is a civil engineer and resident of Wooden Shoe subdivision.
He was asked to represent the residents’ opposition to the special use permit for the sand mine.
He provided a PowerPoint presentation. The first slide listed the constraints they are working
under, noting they are only responding to what’s been agreed to, which is mainly everything
related to the haul road, Sledge Road. Two of the conclusions for approval are key for the
residents. First, the board must find that the use will not materially endanger the public health
or safety; and second, the board must find that the use will not substantially injure the value of
the adjoining or abutting property. He said they are also concerned about that issue. He added
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that some residents are also having trouble seeing the Sledge sand mine as a public necessity.
They agree that sand is a public necessity, but not necessarily this sand mine. There are plenty of
locations for sand mines. Mr. Webbon reported that if the topic of the sand mine being a public
necessity came up, the residents would object. He introduced Cole Van Heuveln, a Wooden Shoe
resident and roadbuilder, who is knowledgeable about proper roadbuilding methods, to address
the residents’ concerns about the proposed road improvements.
Cole Van Heuveln of 5711 Dekker Road was sworn in. Mr. Van Heuveln stated he is one
of the residents with a well very close to Sledge Road. For the last four years, he has been doing
grading and contracting work on River Road. He’s been there since the roadwork started, has
built a lot of that road, and has been a part of building every single road within that development.
Mr. Van Heuveln stated his greatest concern was that they adjusted the proposal to increase the
asphalt thickness from two inches to three inches. He was concerned whether the road would be
constructed in such a manner that the old road would be removed before paving it. He said in
initial discussions with the residents who are adjacent to Sledge Road, the applicant didn’t want
to remove the old road material to put in new material prior to construction. Roadbuilders know
the old material should be removed and new material should be put in to ensure everything
across the bottom is the same and meets the necessary standard. The samples must be sent to a
lab, but they can't verify that's what it is all the way across the board unless they tear out the old
material and start from scratch. The residents are also concerned about the safety of their wells
because safe, available drinking water is vital. It can also affect the sale and property value. You
can't live in a house without running water and drinking water. Another major concern is road
runoff. He noted the applicant had addressed stormwater in their presentation, but he
questioned if they would be managing stormwater from the rain, and the water they would be
using to wash their road off. He asked if the water from washing their road off, possibly full of oil,
etc. would be running onto the adjacent residents’ properties, passing through the vegetation
and the fence. He mentioned the stormwater from the recent hurricane. Mr. Van Heuveln stated
storms have a lot to do with where all that fluid and other residue that builds up on the road
goes. He questioned if it would affect the ecosystem in the area they live in. Mr. Van Heuveln
stated there is a drainage ditch on the other side of Sledge Road, which is where the water needs
to go so the road must be constructed in such a manner that the water goes in that direction
instead of toward the adjacent residences. That road runoff is the biggest concern. He stated the
proposed plan is for a 20-foot wide road. He commented that is a tight circumference to fit two
dump trucks side by side on the highway safely. They have a 5‑foot shoulder, but most people
don't like to drive on the shoulder of the road to get where they're going, and it's not feasible to
create that for a dump truck to be driving on the side of the road or off the shoulder. It's just
going to damage everything, so the proposal is to shrink their 5‑foot shoulder and build the road
wider. They are in their sixty feet and that’s all they have so if they don’t use it wisely, it will
create issues. He asked what would happen if two dump trucks collided back there because they
were speeding. He also asked who would regulate the speed limit on Sledge Road. He said there
isn’t enough room for the trucks, and he doesn’t want a dump truck in his backyard. Mr. Van
Heuveln reiterated that his major concerns are the testing for the asphalt roadway, where the
stormwater is going, and ensuring that Sledge Road is wide enough for trucks to pass safely so
adjacent residents don’t have dump trucks in their yards because of accidents.
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Mr. Webbon stated that a major concern of the residents is truck noise. He presented a
chart showing the Environmental Protection Agency (EPA) maximum outdoor noise level of 55
decibels in residential neighborhoods to allow for intelligible communication. By comparison, the
typical noise level generated by a passing dump truck is 85 decibels at 50 feet and 78 decibels at
100 feet. It’s difficult to reduce the noise level from 78 decibels to 55 decibels. He pointed out
that a fence made of wood, metal, masonry or other material must be tall enough to break the
line of sight from the highway to the home can achieve a 5-decibel reduction in the noise level.
A strip of dense vegetation 100-feet wide or 98-feet wide can also reduce the noise by 5 decibels;
however, they don’t have 100 feet so they would only be able to achieve a reduction of 1 or 2
decibels. Using that information, those two mitigation measures would only reduce the noise for
the residents from 78 decibels at 100 feet to 71 decibels, which is nowhere near the 55 decibels
recommended by the EPA. Mr. Webbon said the truck noise is an issue. Mr. Webbon stated the
board must find that the issue will not materially endanger the public health or safety, as
proposed and developed according to the plan as submitted. He explained that is the
requirement the applicant needs to meet in terms of noise. He said it doesn’t appear that the
applicant’s proposed noise barriers consisting of the berm, fencing, and plantings, will meet that
requirement. He also noted that an accredited acoustic analysis professional hasn’t certified that
those proposed noise mitigation barriers are sufficient to reduce the noise level to 55 decibels.
Mr. Webbon said they had found this information by examining the available resources, and the
adjacent residents feel the noise mitigation issue needs to be reviewed by accredited acoustic
professionals. He provided an audio recording of the sound of a dump truck to demonstrate the
noise the neighbors would hear from the truck traffic.
Mr. Webbon stated that another major concern is the diesel exhaust. It is difficult to
measure the level of problems with diesel engine exhaust, but it is known to be bad and to
sometimes cause cancers and other illnesses, and must be dealt with. He stated we don't really
know exactly how bad diesel engine exhaust is. One can certainly imagine that the result of a lot
of diesel engines running will be residual soot spray on car hoods and that type of thing. Mr.
Webbon stated he wouldn’t go into a detailed explanation on how to mitigate the effects of diesel
engines, but there are many ways to do that, for example, using newer trucks with better
emissions control. Mr. Webbon stated dust is also a major concern that must be mitigated. There
are many ways to mitigate dust other than those presented earlier, for example, two-way traffic
with paved shoulders, maintaining the road by washing, maybe daily, washing truck wheels
before driving on a paved road, and using tarps to cover truck beds. Mr. Webbon stated the
applicant hasn't provided data or adequate solutions to monitor or mitigate the adverse
consequences of exposure to the diesel engine exhaust, dust and radiation. Residents would like
to know about the radiation. The reason they have test wells at the houses there is because GE
is testing the well water. He added the residents would also like to know if there’s something
wrong with the air, whether the chance is remote or not. Residents would like to have it verified,
at least one per year or whatever agreed upon timeframe, that there is no radiation around their
homes. He stated that is particularly important for future homes sales.
Mr. Webbon reported that when the North Carolina Department of Transportation was
constructing I-140, they chose to locate the road on the south side of GE instead of the north side
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of GE, because they didn’t want to impact the critical ecosystems on the Sledge property. He
thought it was interesting that the North Carolina Department of Health, Environment, and
Natural Resources was opposed to endangering the critical ecosystems on the Sledge property
so NCDOT switched the road to the southern route.
Mr. Webbon pointed out that if phase 2 of the sand mine is approved, this will continue.
It’s not like chopping down the trees, where the foresters come in and cut trees down every year,
stay for a month or a month-and-a-half at the most, and then leave. This sand mine traffic is not
going to be over in a month; it will last two years, four years, or maybe more, so whatever is
done, it must be done very well to protect the residents along the road. It may be possible, but
on the face of it, it doesn’t look like it. Mr. Webbon said that’s the main reason the residents are
objecting to it. It seems that it will affect very much, especially the people along the road, but
also everybody else in the Wooden Shoe subdivision and in other neighborhoods.
Hearing no other testimony, Chairman Rawl thanked the residents for their presentation.
He stated the public comment period would be extended an additional ten minutes for both
sides, and five additional minutes would also be granted to the applicant.
Upon being sworn in, Joy Tinder of 105 McDougald Drive commented that their
neighborhood is agricultural/rural zoning and inquired if it was correct that the applicant wants
heavy industrial zoning for the neighborhood, and if so, why.
Chairman Rawl explained the rezoning request is for a sand mine, which will require that
heavy industrial zoning. He clarified that the neighborhood itself would not be rezoned to heavy
industrial. Neighborhood residents and property owners have an opportunity to speak about the
proposed rezoning because the road to access the sand mine passes their neighborhood. He
reiterated that the applicant has not requested that the neighborhood be rezoned to heavy
industrial; they have only requested that their property be rezoned for the sand mine.
During opposition, Trudy Murphy of 5719 Dekker Road said she hoped the ten-foot tall
fence would ensure their privacy if the project went forward, but it doesn’t address the noise or
vibration as much as they hoped. She commented that it isn’t indicated whether the proposed
fence will be a prefab fence or a stick‑built fence of a quality that will last for a while. Ms. Murphy
requested that a condition requiring a stick-built fence be added to the approval of the project.
She stated that two rows of bushes are being proposed in the buffer, but she would request that
one of those rows be removed and be replaced by a row of trees so that additional height is
immediately provided. At Vice-Chairwoman Girardot’s request, Ms. Murphy repeated her
request substitute a row of bushes for a row of trees in the buffer to provide immediate height.
Ms. Murphy said she also hoped the 15-mile-per-hour speed limit on Sledge Road proposed by
the applicant would be attainable. She has been watching dump trucks lately, and thinks it will
be hard for them to maintain that speed limit. For that reason, she requested that speed limit
signs be installed on the road; and that truck drivers be notified that the speed limit will be
enforced, and that if too many complaints are received, they will not be able to use the mine.
Ms. Murphy also requested that the proposed gate not be placed too close to the property lines
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of the neighborhood, noting that would create more problems for the neighbors. Ms. Murphy
commented there had been slight improvements in the quality of Sledge Road after the meeting
between the residents, the applicant, and county planning staff. She hoped the residents could
rely on the board’s expertise to make sure the road is designed for heavy truck traffic over a
period of years, especially if the sand mine request is approved and the second phase of the mine
is also permitted, because they could be under that traffic for ten years. She said the road must
be built correctly. In conclusion, Ms. Murphy requested that these specific requests become
conditions of the permit if the request is approved, in addition to a condition specifying the days
and times the mine will be open.
Cole Van Heuveln stated based on his experience, he would like to add to his earlier
comments regarding road paving. In a residential neighborhood, three inches of asphalt is used
on a normal trafficked road and two inches of asphalt is used on an alleyway. He asked the board
to take into consideration that 100 dump trucks per day would not be expected to travel on a
residential street or alleyway. He explained that seven inches of asphalt is on the new River Road.
He also noted eight to eleven inches of ABC is used depending on where a road is located. Paving
in depths like that prevents the wavy patterns across the road from left to right. Over years,
roadways break up in high traffic areas, like College Road. In regard to the proposed three inches
of asphalt on Sledge Road, the question is whether the road will last the length of time the mine
will be in operation, given phase 1 is expected to be three- to five-years, and phase 2 if approved,
will extend that timeframe to ten-plus years of truck traffic. Mr. Van Heuveln said it was
important to take that into consideration.
Waylon Webbon replayed the audio exhibit and reiterated it was at 72 decibels, which is
what the residents adjacent to the haul road, Sledge Road, would be hearing every four minutes
indefinitely if the conditional use rezoning is approved.
Chairman Rawl closed the opposition portion of the public hearing.
Chairman Rawl stated the applicant has agreed to a fifteen-mile-per-hour speed limit on
Sledge Road, and inquired regarding the audio exhibit, what speed the vehicle was traveling to
demonstrate the noise decibel level of 72dB. He asked if it could be verified that the dump truck
on the audio recording was traveling at 15 miles per hour as proposed for Sledge Road by the
applicant.
Mr. Webbon responded that they didn’t have the credentials to do the acoustic analysis;
they could only play an audio clip that is 72 decibels, which is the stated noise of a truck from
100-feet away. He commented that the sound would probably be less if the truck was going
slower; however, if a truck gets too slow, it can result in diesel fumes and noise from revving the
engine.
Chairman Rawl commented that there was a request by a neighbor at the last public
hearing that speed bumps not be used on the haul road because it would cause a stop and start
effect. The applicant has taken a lot of time and consideration and was encouraged by the board
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to discuss their plan with residents, which he hoped they had done. He noted it was compelling
to hear; however, he would like to have an even comparison of the noise of a truck 100 feet away
behind a fence barrier.
Chairman Rawl inquired if board members had any other questions for the opposition.
Hearing none, he opened the applicant rebuttal period.
Applicant Rebuttal
Attorney Stephen Coggins stated he would like John Tunstall and Mr. Tripp to come
forward to answer questions from the board. He said the average width of the trucks that will do
this operation is 8.5 feet wide. He stated, with respect to the noise issue, it's difficult to do an
analysis when we don’t know exactly what types of trucks will be used for this operation;
however, Mr. Tripp has experience with the predominance of trucks in this area and how they
perform. Mr. Tunstall can address the specifications of the roadway and roadside. He stated the
house closest to the road will be 150-feet from the pavement proposed and the other residences
are further away from the road. The fence will be stick-built, there will be a 15-miles-per-hour
speed limit, and there will be signs. The applicants will be making that a stipulation of the
contracts they have with the trucking companies doing the hauling. The fence gate will be 1,000-
feet from Castle Hayne Road to prevent dump truck traffic backup and will be located a
considerable distance southeast of the residences. He asked Mr. Tunstall to address the
pavement specifications and Mr. Tripp to talk about the trucks.
Engineer John Tunstall stated regarding the pavement specification; the road will be built
to the NC Department of Transportation standards. The specifications on the plan shows that 8-
inches of stone and 3-inches of asphalt will be used; however, there is a note on the plan stating
that a geotechnical engineer will go onsite and take soil samples to test, and obtain the weights
of the vehicles and number of vehicles that will be traveling on the road. That information may
result in the material getting heavier. He stated they have used that in a lot of heavy-duty
applications and have been successful with it. It will all depend on the number of vehicles and
how heavy those vehicles are, and that analysis will be provided by a geotechnical engineer. Mr.
Tunstall stated the road will also be pitched to drain away from the homes, and the stormwater
treatment will be done in accordance with NC DEQ guidelines and New Hanover County
guidelines. The applicant will work with those engineers and obtain permits through those
agencies.
In response to Board Member Olds’ inquiry, Mr. Tunstall confirmed that at 15-miles-per-
hour, two dump trucks can pass each other on a 20-foot wide road with no problem.
Board Member Allen Pope inquired if it was true that Sledge Road was or had been a
logging road previously.
Mr. Tunstall replied that he could neither confirm nor deny if the road had previously
been a logging road, but he would imagine that was probably so.
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In response to Board Member Pope’s inquiry, Mr. Tunstall stated he had not visually
observed the road and explained that his partner had put the plan together, but was unable to
attend the meeting. He commented that he had seen the road in previous years, but he hasn’t
been out there recently.
Board Member Allen Pope said regarding the current road subgrade that if it had been a
logging road and the subgrade was inadequate, it would have shown up by now.
Mr. Tunstall agreed, and noted the applicant would proof-roll the road, identify the
inadequate areas, and cut them out. He said he would imagine if it was a logging road for a long
period that the subgrade is adequate.
Board Member Jeffrey Petroff asked Engineer Tunstall to expand on the drainage because
a resident had a valid concern. He noted they are all very cognizant of drainage. Understanding
that the applicant will work through the NC DEQ and the County on stormwater requirements,
Board Member Petroff asked Mr. Tunstall if there were any relief points along the residential lots
that would allow drainage to go back onto the lots, and if the applicant could commit to not
allowing any road drainage to release onto the residential lots.
Engineer Tunstall stated, to his knowledge, they do not have a survey of that 60-feet strip
so he doesn’t know what the existing conditions are at each lot, but the applicants will pitch the
road back over away from the homes and try to take as much stormwater away from them as
they can.
In response to Board Member Allen Pope’s inquiry, Engineer Tunstall confirmed that
depending on the location along the road there are existing ditches. As shown on the site plan, a
ditch is located on one side of the road in one stretch, and in another stretch of the road, ditches
are located on both sides of the road.
Board Member Pope inquired if the drainage pattern had been looked at enough to
assure the adjacent residents that water will not be coming back onto their property.
Engineer Tunstall responded that he doesn’t have a topographical map of the property
yet, and he hasn’t examined the drainage patterns.
Dave Tripp with Tripp’s Construction addressed the board regarding dump trucks. He
stated there was a lot of concern expressed about the sound of the trucks and diesel fumes. In
2007, emissions control came into play, and went from Tier 3 to Tier 4 interim; and in 2012, Tier
4 final emissions control standards came out on all diesel engines sold. The truck engines run
clean now and don’t put off a lot of diesel fuel spray, smut, soot, etc. Emissions are where they
need to be now. He thinks it’s regulated by California. Mr. Tripp doesn’t think the residents will
have a problem with diesel fuel spray, smut, etc. He also commented that the audio clip of the
truck played earlier sounded like the sound of a 1984 Mack. This is 2019, and things have come
a long way. Most trucks now have automatic transmissions. Back then, trucks had to get to a
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certain rpm for the truck to shift, but that isn’t the case now. The driver just puts the truck in
drive and the gear will shift on its own. Mr. Tripp said he didn’t think the noise level would be
anywhere near the level in that sound clip. He offered to answer questions from board members.
Vice-Chairwoman Girardot stated the Sheriff’s Department has a device to measure
decibel levels. She asked if Mr. Tripp if he knew what decibel level qualifies as a nuisance.
Dave Tripp said he thought the nuisance level was 80 plus decibels.
Deputy County Attorney Sharon Huffman stated the New Hanover County ordinance
states that in a residential zone, it is unlawful for any person to create any sound, when combined
with the ambient noise, exceeds 65 decibels. In response to Board Member Olds’ inquiry,
Attorney Huffman said the ordinance doesn’t state where the noise level would be measured
from, however, the Sheriff’s Department does have a standard they use for that purpose. Planner
Schuler has spoken with the detective, who enforces nuisance violations. Senior Planner Schuler
stated the noise level is measured from the corner of the house of the property owner making
the complaint.
In response to a request from Board Member Ernest Olds, Mr. Tripp confirmed he was
comfortable that a 20-feet wide road was enough for two trucks to pass at 15-miles-per-hour. He
just put in a metal mine and it has a 20-feet wide haul road.
Deputy County Attorney reported that the ordinance does state that noise measurements
shall be made at the nearest corner of the complaining structure.
Chairman Rawl commented for the benefit of anybody in the audience whose primary or
secondary concern is noise, it was his understanding that if a noise complaint is filed that
essentially the New Hanover County Sheriff’s Department would come out and measure the
noise level in decibels. If the measurement exceeds 65 decibels, a vehicle drive could be ticketed
with a warning, and then a secondary warning; however, if there are more than two infractions,
the drive could potentially lose their ability to traverse the road.
Deputy County Attorney Huffman explained the Sheriff’s Department would determine
their practice for responding to complaints. It is her understanding that if a citizen calls and makes
a noise violation complaint, the Sheriff representative will make an onsite visit to take a
measurement with the decibel meter, and issue a violation penalty as provided by the ordinance.
The violation would be given to the driver of the vehicle, and the penalty would be $100 for the
first offense, $300 for the second offense, and $500 for the third offense; there is also a provision
in the ordinance for a criminal charge, which she has seen happen on occasion.
In response to Vice-Chairwoman Girardot’s inquiry, Dave Tripp confirmed the trucks
would be tarped, noting that North Carolina state law requires dump trucks to have tarps. A
dump truck on the highway without a tarp will be issued a fine.
Page 12 of 45
In response to Board Member Pope’s inquiry regarding a resident’s request for a different
type of vegetative buffer, Attorney Coggins stated the applicant had held meetings, but he didn’t
recall any discussion about substituting trees for some bushes in the vegetative buffer. He sensed
there was an agreement that what was desired was something that grows wide and very bushy,
whereas trees, in comparison, can be slender. He said they are willing to look at that, but it was
their understanding that the buffering qualities both visually and for noise, dust, etc. are
enhanced by bushes that grow fast, wide, and thick.
Board Member Pope stated it was his understanding from the presentation that Green
Giant was a type of tree or evergreen bush being proposed, and they grow tall, wide, and fast.
Attorney Coggins confirmed that Green Giant is one of their options. The applicant would
be happy to look at that if the neighbors prefer it.
Opposition Rebuttal
Chairman Rawl opened the five-minute opposition rebuttal.
Mr. Webbon stated the neighbors feel it is necessary to find out specifics on the noise
parameters for the operation. The applicant has said they can’t tell us now because they haven’t
made the measurements and gotten any acoustic data. For that reason, the residents would
request the Planning Board make a condition requiring the applicants to provide documented
audio analysis proving the decibel level will be below 65dB at 100 feet before approving the
special use permit.
Hearing no further comments, Chairman Rawl closed the public hearing and opened the
Planning Board discussion period.
Board Member Jeffrey Petroff stated he felt the applicant had made a good attempt to
address the concerns along the road. He noted that three inches of asphalt and eight inches of
stone is a stout road cross-section. Of course, that always depends on the subbase, and if they
can commit to doing the testing, he thinks that is a stout road. He suggested a couple of
conditions that could be added if this does move forward would be the requirement of a stick-
built fence, along with a requirement to prohibit drainage from Sledge Road or any of the ditches
from cross-draining onto any residential lots. He understands the applicant doesn’t have
topography yet, but the residents’ fears and concerns are valid about drainage. He said he would
feel better about the drainage issue if that condition was added. Board Member Petroff stated
the residents’ concerns about noise are also valid, however, there is an existing enforceable
provision in the county ordinance to address that issue.
Chairman Rawl noted the opposition’s closing request to have some provisions related to
ensuring noise levels are below the maximum of 65dB, which coincides with the county’s
ordinance, which provides for law enforcement action and penalties when the maximum of 65dB
is exceeded in a residential neighborhood. He inquired if it would be appropriate to include that
Page 13 of 45
condition if the special use permit is recommended for approval, given the county ordinance
already addresses and enforces noise levels.
Deputy County Attorney Sharon Huffman confirmed it would be appropriate to have a
condition related to noise and enforcement of noise levels.
Board Member Allen Pope stated he would like to add to Mr. Petroff’s suggested
condition regarding the road and the subgrade, and include proof-rolling of the existing subgrade,
to determine if there are any issues with the existing subgrade, per Engineers Tunstall’s earlier
comment. He commented that Mr. Petroff had already addressed his other two concerns in his
suggested conditions.
Chairman Rawl noted the applicant has already committed to some geotechnical
compaction testing, and Mr. Pope would like them to add proof-rolling of that road prior to
paving as well.
Board Member Pope confirmed that was his request, and explained that geotechnical
sampling is only good for that one spot, and proof-rolling will tell the difference between the
different spots.
Board Member Ernest Olds recapped where they were and went through his concerns.
He stated after the January meeting, he was struck by the proximity of the traffic to the road, and
concerns about safety, drainage, durability of the road, and certainly noise. He stated they had
done a great job bringing to the board’s attention exactly how this is going to work. He said he’s
been made much more sensitive, particularly with regard to the noise. The board asked questions
about whether the road was wide enough and thick enough, if the fence will be tall enough, and
where the vegetation is to provide an adequate buffer. In all those cases, the applicant has made
a good faith effort to improve the conditions as much as possible. We’re now at the point where
it’s decibels and science, and he would concur with the chairman. He thinks it should be a
requirement to test after construction at the home that is the closest, at 150-feet or whatever
the distance, and prove that the project does in fact operate at the mandated decibel level. Board
Member Olds said he wouldn’t want to have dump trucks in his backyard either. He lives off
Market Street and can hear the traffic, so he knows it’s a part of life. He thinks it’s reasonable to
allow the mine to operate if they can operate within the guidelines we’ve set for our
communities. He stated he wants to be fair to the neighborhood, but he also wants to be fair to
the applicant. He thinks if the board requires a confirmation of design, that’s probably as much
as they can and should do.
Vice-Chairwoman Girardot stated Mr. Olds has summed it up very succinctly. She said she
would also like to make absolutely certain that the trucks would be tarped, and speed limit signs
would be posted on Sledge Road to remind drivers to keep their speed down. She felt everything
else had been well-covered. She congratulated the applicant for stepping up to the plate and
coming forward with good faith solutions following the January meeting.
Page 14 of 45
Board Member Allen Pope said he thinks Mr. Olds’ suggestion to do that post-
construction decibel test is a great idea; however, he was concerned about what would happen
if the project fails the post-construction decibel test. He inquired if there was a condition that the
board that could place on the approval requiring the applicant to do something different is the
test failed.
Board Member Olds said his thought was that it must conform to the legal requirements
and what the law says if it doesn’t. He believes the law says it can’t operate if it doesn’t.
Chairman Rawl asked if would be possible, if the applicant concurred with a condition, to
have the applicant conduct that testing prior to the County Commissioners' meeting.
Deputy County Attorney Sharon Huffman replied that she doesn’t see a problem with a
condition of the approval being that the operation provide it is not going to violate the noise
ordinance; however, she does think it may be better for the Board to suggest the applicant do
the testing and provide the analysis at the County Commissioners meeting.
Attorney Coggins stated that it's very difficult to do testing, unless we do so under the
actual conditions, with the paving, the buffering, etc. He said even if it was all in place, he doesn’t
see how they do it before the County Commissioners meeting.
Chairman Rawl agreed and apologized, noting he was trying to address the concerns of
the citizens and stay in keeping with the County ordinance.
Vice-Chairwoman Girardot stated she thinks the solution is out there. She thinks that after
all this work is done and the road is put in and they do exceed the decibel limit, the solution is
already out there in the County’s ordinance, with the fines, and then legal action. In her opinion,
the ordinance offers the residents a certain level of protection.
Chairman Rawl stated the board has heard board discussion and compelling testimony
from both sides. He commended the applicants, noting great consideration had been made by
them to protect the residents’ well-being and the value of their properties.
Hearing no further board discussion, Chairman Rawl entertained a motion.
MOTION: Board Member Allen Pope MOVED, SECONDED by Board Member Ernest Olds to
recommend approval, as the Board finds this application for a Special Use Permit meets the four
required conclusions based on the findings of fact included in the Staff Summary, with the
following conditions.
CONDITIONS:
1. Sledge Road shall be improved as illustrated on a site plan dated February 26, 2019
(Exhibit B), included with the application, and as noted below:
Page 15 of 45
a. Sledge Road shall be paved, 20 feet in width, generally along the residential
properties and equestrian facility, including the extension of the road as illustrated
on the site plan.
i. The pavement shall consist of at minimum 8 inches of NCDOT ABC stone
atop the subgrade and 3 inches of NCDOT S9.5B asphalt pavement.
ii. In addition to geotechnical testing, proof rolling methods shall be utilized
to test the subgrade of the road prior to paving.
iii. The improvements to the road shall be designed and constructed so that
the road is pitched away from the abutting residential lots so that it drains
to the existing ditch along the southwestern side of the road. The
improvements to Sledge Road shall comply with State and County
stormwater rules.
b. A buffer shall be installed along the northeastern side of Sledge Road abutting the
residential properties and equestrian facility as illustrated on the site plan.
i. Section A of the buffer shall consist of:
1. A 10-foot-high wooden fence. The fence shall be stick-built on site
with posts embedded in concrete to 4-foot depth. The fence shall
contain a gate/door entrance to allow access to 2 existing
groundwater monitoring wells located at 5711 Dekker Road.
2. Two rows of staggered planted vegetation. The vegetation shall be
spaced as noted on the site plan and so that there is a 5-foot wide
opening through which access can be gained to the two
groundwater wells located along Sledge Road behind the
residential properties at 5715 and 5719 Dekker Road.
ii. Section B of the buffer shall consist of:
1. One row of vegetation as illustrated on the site plan.
iii. The vegetation within the buffer shall consist of at minimum 3-gallon bulb
Wax Myrtles, Green Giant Arborvitaes, or Nelly Springs Hollies at planting.
2. The applicant/owner of the mining site shall be responsible to repair any damage to
drinking wells on the adjacent properties caused by the improvements to Sledge Road.
3. The applicant/owner of the mining site shall maintain Sledge Road and the culvert
underneath Sledge Road.
4. The existing entrance gate on Sledge Road shall be relocated approximately 1,000 feet
west on the road in order to prevent queuing of trucks onto Castle Hayne Road attempting
to gain access to the mine site.
5. The hours of operation of the mining operation shall be Monday through Friday, 8:00 a.m.
to 5:00 p.m., closed on New Year’s Day, Martin Luther King Jr. Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
6. Speed limit will be 15 MPH along the Section of Sledge Road behind the residences. There
will be speed limit signs along the road and the mine operator will be required to
implement procedures for enforcing the speed.
7. The mining operation shall comply with the County’s noise ordinance.
Page 16 of 45
The Planning Board voted (5-0) to recommend approval of the Special Use Permit portion
of Rezoning Request (Z18-19) with conditions. (Ayes: Girardot, Olds, Petroff, Pope, and Rawl.
Boney was not present and did not vote).
Chairman Rawl thanked everyone for their time and announced a short recess.
RECESS
Item 3: Rezoning Request (Z19-02) – Request by New Hanover County to rezone approximately
1.04 acres of land located at 5155 S. College Road, from R-15, Residential district, to (CZD) B-2,
Conditional Highway Business district.
Chairman Rawl opened the public hearing and recognized staff to present the application.
Current Planning & Zoning Supervisor Ken Vafier provided information pertaining to
location, land classification, access, and level of service and zoning; and showed maps, aerials,
and photographs of the property and the surrounding area. Mr. Vafier presented the following
staff report.
The subject property is located directly in front of South College Road north of the Monkey
Junction Intersection in the southern portion of the county’s jurisdiction. It is the site of the
existing Myrtle Grove library. The property is zoned R‑15 Residential, and is bordered to
the east by single-family lots in the Greenbriar subdivision, which is zoned R‑15. To the
north and south are institutional usages, specifically a medical office and bank, both with a
conditional office and zoning designation. They were rezoned in 1995 and 2000
respectively. To the west and further south is a large area of B‑2 and Conditional B‑2 zoned
property where large destination retail centers characterize this immediate commercial
node.
New Hanover County has owned this parcel since 1989 and operated the library since 1993.
In 2016, the County acquired property near the Intersection of 17th Street and South
College Road for a new library facility, which is scheduled to open in the spring of 2019. The
County will be placing this site for sale to assist with offsetting the cost of the new library
construction. Prior to the sale, the rezoning proposal has been initiated in order to provide
a zoning district more compatible with the location, general land use pattern, and future
land use designation at this specific site.
When the initial R-15 zoning was applied in 1968, the land use pattern here was largely
rural suburban and the area has seen significant growth since then. The Monkey Junction
area is one of the two largest commercial nodes in the unincorporated county. As the site
has direct frontage on South College Road, rezoning it to a Conditional B‑2 district would
provide the opportunity for proposed commercial uses in close proximity to residential
uses, which contributes to the vision of the comprehensive plan, which at this location is
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designating a preferred development pattern consisting of higher intensity commercial
uses in close proximity to other uses. Staff is of the opinion that a single residentially zoned
lot along a major commercial thoroughfare at this location is no longer compatible with the
development pattern in this node, so the County is proposing limiting the uses at this site
to the following eight uses. (Approximately 91 uses are permitted by right in the B‑2
district). The proposed uses are eating and drinking places; general merchandise stores;
miscellaneous retail (excluding vape stores); banks, credit agencies, savings and loans;
business services, including printing; barber and beauty shops; personal services (excluding
tattoo establishments); and offices for private business, and professional activities. Staff
narrowed the proposal down to these uses in consideration of potential impact to the
adjacent property owner. As a result of the community meeting held on February 5, 2019,
some attendees expressed interest in mitigating potential impacts of some activities that
may come along with the proposed uses. Thus, staff has proposed the following condition
on eating and drinking places, which is that no outdoor entertainment is allowed after
10:00 p.m. Additional concerns and questions that relate to buffering, setbacks and
landscaping in order to provide some protection to the residential uses can be addressed
in zoning ordinance provisions that are currently in place.
A conceptual rendering for redevelopment of the site shows some design features that
would apply to the site in some manner in the event of redevelopment. Currently, the
existing building is approximately 1,600 square feet on the 1.04-acre site. Should the site
be redeveloped, a building setback on the rear or eastern portion of the site would apply,
and this is ultimately dependent on a proposed building height. However, in all cases a
minimum 35-foot setback will apply. Within this area, a buffer area of half the required
setback or no less than 20-foot-wide at a minimum of a buffer area would be required. The
rear yard buffer is required to have plantings or a combination with a fence or a berm that
achieves 100% visual opacity within one year of planting. In the B-2 district, a front yard
setback of 50 feet applies to parcels along U.S. numbered highways. Street yard
landscaping would be required along the boundary road on South College Road with a total
area of 4,125 square feet. This width can range from 12.5 to 37.5 feet. The zoning of the
uses to the north and south are commercial, so buffers and setbacks are not required on
each side. Features such as dumpsters, storage areas, loading areas and HVAC are required
to be visually screened, and lighting is required to be shielded so it doesn't radiate directly
into adjacent properties. When those design features are considered, the potential
development area is just under 28,000 square feet, which will ultimately dependent on the
final design of the site. There is an existing access side on the southwestern portion of the
site, and overflow parking is currently contained in the bank to the south. The ordinance
does contain shared parking provisions that would allow for the continuation of that shared
parking should B-2 zoning be approved. The owners of the two sites could agree in the
future redevelopment proposal.
In regard to traffic impacts, three recent traffic impact analyses were analyzed. Those
details are contained within the staff report. Due to the nature of this request, with no
specific development proposal at the time, any proposed development consistent with the
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uses limited in this conditional zoning request will be required to adhere to the traffic
impact requirements and the ordinance at the time of site development. That would
include the submission of a traffic impact worksheet prior to the submittal of the
development for site plan review. All recommended traffic improvements that come with
that analysis must be installed prior to occupancy. For the purposes of obtaining a
preliminary analysis of traffic impact, staff estimated an area of approximately 11,325
square feet for a structure. This represents 25% gross area of the site, which is a typical size
for this using the trip generation manual. Given a one‑story structure with this size
footprint, the potential trip generation ranges from approximately 17 to 246 peak hour
trips
The 2016 Comprehensive Land Use Plan designates this site as Urban Mixed Use, which
promotes development with a mix of residential, office and retail uses of higher densities.
It includes office, retail, small recreation, commercial, institutional and multi‑family and
residential. The proposed conditional district would allow for a variety of retail commercial
uses and office uses. While bordered to the north and south by offices, commercial use is
also included in the mixed‑use provision for the area and commercial districts are
identified as zoning categories for the site. The proposed conditional B‑2 zoning is
generally CONSISTENT with the 2016 Comprehensive Plan. In conclusion, staff recommends
approval of the request.
In response to Vice-Chairwoman Girardot’s inquiry, Planning Supervisor Vafier confirmed
that the current ingress and egress to the site is signalized. Vice-Chairwoman Girardot then
commented that in the Planning Board packet, there were some concerns expressed by the
neighbors immediately adjoining this property, but she thinks staff has addressed those concerns
because they will be addressed through the ordinances determining buffers and setbacks,
lighting, and noise requirements.
Board Member Ernest Olds asked Mr. Vafier for a clarification regarding buffers if
somebody buys the property and occupies the existing building there, and whether those buffers
would be imposed.
Supervisor Vafier explained that the existing building has a legal nonconformity on the
front yard setback, due to two factors. One, as an R-15 zoned lot, right now, it has a front yard
setback of 25 feet. Second, in 1993, about the same time the library was constructed, South
College Road was widened so likely that additional right‑of‑way required led to that
nonconformity, which measures approximately 15-feet of setback. Should a permitted use move
in and utilize the existing building, they would be able to preserve that nonconformity, and that
may include the buffers; however, that may depend on the exact proposal. The nonconformity
can be preserved so long as all parking requirements are met, and staff would look at the
buffering as well.
Page 19 of 45
Chairman Rawl noted the intent is to limit whomever comes in to potentially purchase
the property, and there is a limited table of permitted uses that the buyer will be constrained to.
He inquired if that limited table of uses would apply if the buyer doesn’t change the existing
structure.
Supervisor Vafier confirmed that the limited uses listed would all be permitted uses in the
new district, so subject to the nonconformity section of the ordinance, those uses would be
allowed to occupy the building.
In response to Chairman Rawl’s inquiry, Planning Supervisor confirmed that a library is a
by-right permitted use in an R-15 zoning district, and clarified that the only nonconformity
currently on the property is the front yard setback.
Board Member Petroff commented that, in the picture presented, it appeared that the
parking lot falls within the rear buffer. He asked if that would be grandfathered in and how a new
owner would achieve the opacity requirements.
Supervisor Vafier explained that redevelopment of the site would trigger the 100 percent
opacity requirement. He didn’t have a firm answer about the buffers should the existing building
be utilized, but noted that would be determined during the development review process.
Board Member Pope inquired who was responsible for maintaining the ditch in the rear
of the property, and where the property line is located relative to that ditch.
Supervisor Vafier responded it was his understanding that the County currently maintains
the ditch, and the property line is located on the western side of the ditch. In response to Mr.
Pope’s inquiry, he said he wasn’t sure if the ditch was designated as a drainage easement. He has
anecdotal information based on discussion at the community meeting that the library has at
times performed maintenance on the ditch. Mr. Vafier stated he couldn’t confirm or deny that
an agreement for maintenance of the ditch is in place for future use. At Board Member Pope’s
request, Supervisor Vafier agreed to research and obtain an answer to that question.
Chairman Rawl stated that this rezoning request is nontraditional given the County is the
applicant and the staff is making the presentation on the County’s behalf. No additional time will
be needed during the public hearing for the applicant’s presentation.
No one from the public spoke in support or in opposition to the rezoning request.
Chairman Rawl closed the public hearing and opened the Planning Board discussion
period.
Vice-Chairwoman Girardot stated she would like to make a motion.
Hearing no other comments from the board, Chairman Rawl entertained a motion.
Page 20 of 45
MOTION: Vice-Chairwoman Girardot MOVED, SECONDED by Board Member Jeffrey Petroff
to recommend approval, as the Board finds that this request for a zoning map amendment of
1.04 acres to (CZD) B-2, Conditional Highway Business District, as described is:
1. Consistent with the purposes and intent of the Urban Mixed Use place type as the
place type designation in this area is meant to provide a variety of commercial services
for the southern portion of New Hanover County, and the proposal allows for the mix
of commercial and office uses envisioned for the Urban Mixed Use place type.
2. Reasonable and in the public interest because it would allow for a variety of retail,
commercial service, and office uses. While bordered to the north and south by offices,
commercial uses are also included in the mix of uses envisioned for this area, and
commercial districts are identified as typical zoning categories for this place type.
Condition on Eating and Drinking Places:
1. No outdoor entertainment shall be allowed after 10:00 PM.
The Planning Board voted 5-0 to recommend approval of Zoning Request Z19-02 with one
condition. (Ayes: Girardot, Olds, Petroff, Pope, and Rawl (Boney was not present).
Item 4: Subdivision Appeal (SA19-01) – Application submitted by Shipman & Wright, LLP, on
behalf of the Cape Homeowners Association, appealing the technical review committee’s
approval of a preliminary plan for the proposed Windsor Pines subdivision. The subject
property is owned by Southern Destiny, LLC, and is located in the 8800 block of Sedgley Drive
and in the 8700 block of Lakeview Drive.
Chairman Rawl stated the agenda item, Subdivision Appeal (SA19-01), is not a typical
presentation heard by the Planning Board. This is an appeal of the Technical Review Committee’s
(TRC) approval decision. A Planning Board member serves as the chairman of the TRC. The only
issues heard will be those specific to the appeal. The board will hear a staff summary. The
appellant will then have fifteen minutes to present their appeal. The respondent will also have
fifteen minutes to provide a response to the appeal. Then, the appellant and the respondent will
each have a five-minute rebuttal period.
Witnesses were sworn in by Deputy County Attorney Sharon Huffman.
Deputy County Attorney Sharon Huffman stated this is not a public hearing. This is an
appeal hearing that The Cape HOA, represented by the Shipman Law Firm, has filed, and the
appeal hearing is only on the issues specific to the appeal. The appellant’s representative will
have fifteen minutes to present their appeal, and must adhere to the issue(s) cited in their appeal
paperwork. The respondent, the developer, then has fifteen minutes to respond or refute
whatever the appellant has stated. Prior to that, Planner Schuler with the New Hanover County
Planning and Land Use department will give a summary so the Planning Board members, who
Page 21 of 45
will make a determination on whether this TRC approval is to be upheld or not, will understand
what this is about. Deputy County Attorney Huffman stated everyone’s interest and concern is
appreciated, but this is not the forum to tell the board what you think about the fact that this
developer is talking about building houses near your homes.
Senior Planner Schuler stated he would provide a brief background on the appeal
application. He explained the Technical Review Committee reviews major subdivisions in the
County for compliance with the County subdivision and zoning ordinances and other applicable
regulations. The committee consists of several County departments, and some regional and State
agencies as noted in the PowerPoint presentation.
Senior Planner Schuler stated a subdivision is reviewed in a three‑step process. First, the
preliminary plan will show the layout of the development including the number and size of
proposed lots, dwelling units, streets, and open space. Preliminary plans are reviewed by our
Technical Review Committee (TRC). Once it's found that the layout complies with all the
applicable standards, the TRC would approve that plan, which is valid for two years. Approval of
the preliminary plan then allows for developers to work on the construction drawings for the
proposed development. Those are the plans that specifically go over the details of how the
development is going to be constructed, and would include the drainage plans, stormwater plans,
and utility plans, and once those are reviewed and approved, that gives the property owner the
ability to start moving dirt and installing the infrastructure on the site. Then, lastly is the final plat
phase. Once the infrastructure has gone in and it has been verified by the County that it was
installed with the required regulations, the developer can record the actual final plat, which will
officially divide the property into sellable lots of record.
Senior Planner Schuler reported for this specific application, the Windsor Pines
development, the developer has received approval for the preliminary plan, so they are still in
the first step or have finished the first step for this development. The developer has not
submitted the construction drawings at this time.
Senior Planner Schuler presented a slide reflecting the property that is subject to this
appeal. On December 12, 2018, the TRC did consider a performance residential development on
this tract and did approve that development. The Windsor Pines development was reviewed
under the County’s standards for a performance residential subdivision. In total, the project
consists of 132 townhome units on a little over 52 acres of land. This equates to a density of 2.5
dwelling units per acre, which is permitted under the R-15 zoning district, in which the property
is zoned. Senior Planner Schuler explained The Cape HOA is appealing this approval to the
Planning Board, citing three factors in their application. One is the density. Performance
residential developments are permitted up to 2.5 dwelling units per acre in the R-15 zoning
district. The second factor is stormwater. Performance residential developments must comply
with the county’s stormwater regulations, which are reviewed during the construction drawing
phase of a subdivision. The third factor is access. The Windsor Pines subdivision is proposing sole
access through The Cape’s private roads. The TRC approval did condition that a road maintenance
Page 22 of 45
agreement be provided prior to approval of the construction drawings. Senior Planner Schuler
completed the staff presentation.
Appellant Presentation
Attorney Gary Shipman, attorney for The Cape Homeowners Association, stated tonight
is historic because Windsor Pines tracts 4 and 5 containing holes of The Cape Golf Course,
previously approved and platted by New Hanover County, are not tracts that were ever reserved
for future development, and are not tracts that are now or have ever been a part of The Cape.
This submission, therefore, is the first time that property, when you look at the land use maps of
New Hanover County, depending on how you look at it, set aside for conservation because it’s
never been developed, but this is, indeed, a historic moment because no one on behalf of New
Hanover County has ever contemplated that this property that is the subject matter of this
submission would ever be developed.
Attorney Shipman stated the nature of a preliminary plan indicates a stamp from the
County that the property is, “suitable for development.” That’s the definition under your
ordinance of a preliminary plan. It presupposes, therefore, suitability when the plan is approved,
yet, this property is not suitable for any proposed subdivision. First, The Cape Golf Course,
including the holes upon which tracts 4 and 5 are located, was dedicated as a golf course by the
original developer, Cape Joint Ventures, in 1983 through 1986. There's no access to this property
over the streets and roads of The Cape for this proposed subdivision. The preliminary plan is
supposed to show an emergency management plan. Without any access over the private streets
and roads of The Cape, the plan can't be approved. There's no access to The Cape drainage
infrastructure, yet, the plan submitted and approved shows just that. Attorney Shipman said
there is no approval and there will be no approval from The Cape Homeowners Association.
Attorney Shipman then stated this property has existed as a golf course for more than
fifty years. As shown, a conveyance in 1968 of the golf course property expressly conditioned the
conveyance on it being developed as a golf course. He showed photographs from 1949, noting
they had inset where these two tracts are, tracts 4 and 5, and they’re open. In 1956, you can see
they’re open. In 1981, you will see by that point in time the development of the golf course had
begun. In 2006, when this applicant for this subdivision purchased the property, one day before
the closing, a map of The Cape Golf and Racquet Club graphically depicting every one of the holes
was recorded showing specifically tracts 4 and 5.
Attorney Shipman stated regarding the development of The Cape, 1983 is when the 600
and some odd acres that would become The Cape became owned by The Cape Joint Venture,
Suggs and Harrelson. The first thing they attempted to do is to increase the density from R‑15 to
R‑10, and that was unanimously denied because of concerns about drainage in this area. That
same year, they acquired ownership of the 150 acres that would become the golf course. In
February of 1983, March of 1983, over concern about density in this area, efforts by the original
developers to increase the density were denied. Between 1983 and 1986, 17 plats were approved
by New Hanover County for the developer of The Cape and The Cape Golf Course while under
Page 23 of 45
common ownership. These plats clearly show The Cape Golf Course and specifically holes 4, 6
and 7, which are the subject matter of this proposed subdivision. Lots, homes, were later sold
and conveyed by reference to these recorded plats, which we believe under the clearest
interpretation of the law constitute easements by dedication. The homeowner’s association
contends that the homeowners within the homeowners association acquired something in the
nature of an easement appurtenant over the areas that this applicant proposes for subdivision.
Those easements can't be extinguished without consent.
Attorney Shipman stated in 1984, hole number 4 in this recorded plat signed and
approved by New Hanover County, you will clearly see The Cape Golf Course, hole number 4; in
1985 holes 6 and 7, signed off on by New Hanover County, clearly showing the areas proposed
for subdivision now as The Cape Golf Course at the time it was under common ownership with
The Cape Development. In The Cape Section 8, this is the area as staff noted 61 acres while under
common ownership, the golf course and The Cape, were dedicated as open space as part of
Section 8. Contrary to what staff has said, this open space was not part of all the Sections of The
Cape, only part of Section 8 of The Cape.
Attorney Shipman stated in 1986, there’s a deed from the Cape Joint Ventures to Midway
Partners for The Cape, the remaining undeveloped portions. The streets and roads weren't
conveyed. There was a separate conveyance from the Cape Joint Ventures to Midway Partners.
No easements over the streets and roads of The Cape, which were owned per the declaration by
The Cape Homeowners Association. In 2009 were quit claimed by Cape Joint Ventures to the
homeowners association, so since 1986, the golf course and The Cape have been under separate
ownership. In 2006, the plat for The Cape Golf and Racquet Club is recorded. On November 30,
2006, this applicant purchased the golf course, tracts 1 through 5, with no easement granted to
Southern Destiny over the streets and roads of The Cape. He presented the plat that was
recorded a day before the conveyance. There is no dispute but that The Cape Homeowners
Association owns and maintains the common area streets and entrances and they own the
drainage easements; all that being quit claimed to them in 2009.
Attorney Shipman stated when you look at what the preliminary plan is supposed to
include, it's supposed to include all of this. How are you going to get access? Because, again, your
approval of a preliminary plan your signification that the property is suitable for development,
and it's not because they don’t have access. They don't have access to any drainage whatsoever.
It doesn't show how access can be obtained. Under the subdivision ordinance, property is not
suitable unless there's a system of drainage available to it, and there's not one. The preliminary
plan is supposed to show the hurricane evacuation plan. It can’t show one because they don’t
have access. There's nothing in the county ordinance that permits you to approve a plan
contingent on getting access. The nature of preliminary plans is that you have it because the
nature of preliminary approval is that you’ve said it's suitable. For instance, with this preliminary
plan approval, how is the County going to gain access to the proposed subdivision? All public
agencies shall have access. New Hanover County does not have access to the streets and roads
of The Cape for purposes of undertaking inspections of this property. New Hanover County has
access to other properties that are part of the original Cape, sure, but not to this project at all.
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He pointed out on a map the very complicated, integrated drainage system of The Cape that this
applicant proposes to tie into. He then showed the preliminary utility plans calling for that access.
Approval of a preliminary plan does more than merely permit the preparation of construction
drawings. They can sell lots. As he told the TRC, that is what’s happening right now. This applicant
is attempting to sell this plan on the basis of the preliminary approval, and they get to do that.
Appellant Attorney Shipman said staff comments don't address at all the suitability issues. It says
that while the golf course is located within the original boundaries of The Cape subdivision, that
statement is just wrong. It's not true. The Cape was never a part of The Cape Golf Course and vice
versa, except those portions of Section 8 that were set aside, not appurtenant here, as part of
the open space for Section 8. It was never part of any property that was set aside by the
developers of The Cape for future development. It says that 62 acres were set aside; that is true
as part of Section 8. It says neither the open space nor recreation space regulations require that
property be used as a golf course. Attorney Shipman stated that because of the separate
ownership, no part of the golf course could have ever been dedicated and set aside as open space
for the development of The Cape. It must be under common ownership. It references letters from
Dexter Hayes and Allen O’Neal during the period from 1990 to 1994, all talking about the property
that comprises The Cape subdivision. With the abandonment of the original preliminary plan,
with the golf course never having been a part of the original preliminary plan, then it matters not
what the calculations are with The Cape. This property stands on its own.
Attorney Shipman stated the applicant has provided nothing about how they're going to
get access, and the appellants have asked. They've refused to provide us any answers about how
they get access. They’ve refused to tell us how they think they're going to integrate into the
drainage system.
Attorney Shipman said the plan itself, on its face, fails to show how the area is suitable.
The property that they propose for a subdivision has been approved by this county as a golf
course, tracts 4 and 5, by the original developer. He asked what are the options that are available.
Attorney Shipman then stated belief that until staff further studies these issues, which they
haven’t, and until they look at this project as not part of The Cape, but as stand‑alone acreage
without any legal access, then the decision to approve this preliminary plan should be reversed
until such time as the applicant shows suitability on access and integration with the existing
drainage system. Attorney Shipman said he would be happy to answer any questions.
Chairman Rawl asked if the Planning Board had any questions for the appellant. Hearing
none, Chairman Rawl asked the Respondent to come forward with their response.
Respondent Presentation
Attorney Sam Franck, of Ward and Smith, stated he represents the landowner, Southern
Destiny. He stated the appellant is trying very hard to make this issue look complex, and it just
isn’t. This is a very simple case. The proposed plans satisfy the applicable density requirement,
and the TRC did not err in any way believing arguments about private property rights beyond the
scope of its approval. Therefore, this appeal must be denied. He commented this is a very unusual
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appeal. He has not in his time of practicing in this area of law in Wilmington seen an appeal of a
TRC approval before, and he wondered if any of the Planning Board members had run into one
of them yet. Attorney Franck explained that the TRC is a technical review of a preliminary plan,
of a concept plan. There's rarely any reason to ask the board to address an error in the TRC
process, and there certainly isn't one here. This is a blatant effort by the appellant to abuse the
County’s planning process to delay and attempt to obstruct a by‑right development of another
party's land. He said notwithstanding that motivation, an appeal was filed; therefore, the
Planning Board is being asked to hear it, and we're compelled to respond to it. Attorney Franck
stated the applicant's application identifies three topics accurately depicted in Mr. Schuler’s
report as apparent alleged errors. He and his team will address each of those three points. The
applicant's subsequent writings to the Planning Board and much of what Mr. Shipman said is well
beyond the scope of what was properly pled and raised with you. He stated he would address
those additional topics in his response as he has time to do so, but asked the board to please
note his express objection to their consideration of any arguments here that were not properly
pled in the notice of appeal. He stated the onus is on the applicant to demonstrate to the board
that the TRC made mistakes and committed errors, that those errors were material, and were so
significant that they justify overturning or remanding the decision. He stated, in this case, the
appellant has failed to identify any actual error in the TRC’s decision. He said while they might
expect the respondents to talk about materiality, instead he would talk about the absence of any
error whatsoever. He pointed out the plat on the screen showed the same areas seen previously
in the staff’s report. What is identified as tract number 4 in the bottom right and tract number 5
on the left are the two tracts that are the subject of the preliminary plan approval by the TRC.
The initial allegation by the appellant is that the density requirement has not been satisfied. The
appellant presented significant historical evidence to the Board that is completely irrelevant. The
only applicable standard here for density is that the subdivision must be at or below 2.5 units per
acre. The appellant knows that well. They've asked this question of the planning staff countless
times over the years. There are at least three letters where the planning staff has responded to
the appellant to identify to them that is the standard that is applicable. The development
approvals in 1983 and subsequently have no bearing whatsoever on that zoning requirement
today. As accurately noted in the staff's report, the land depicted in the middle here at 61.77
acres is the only property that his client owns that has been dedicated as open space and relied
upon as such. None of that property is the subject of this preliminary plan approval. Attorney
Franck stated Cindee Wolf is the designer who put together the application and designed this
subdivision plan. For the sake of demonstrating to the board the actual density included in the
preliminary plan submittal, he invited her to give a brief presentation on that topic.
Cindee Wolf stated she is a land planner and landscape architect in North Carolina. She
reported that when the owner of the property came to her initially about what could be done
with the fee-simple land he owns that is known as Masonboro Golf Club; she did her due
diligence. She provided a slide presentation to explain what has occurred with this project. She
explained the boundary in red reflected the original boundary of The Cape master plan. She said
absolutely the fee‑simple land that has been known as the Masonboro Golf Club is part of that
original 627-plus acres that the master plan approved for up to 966 units. She said that’s a given;
this has always been part of The Cape master plan, but it was retained in fee-simple by the
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developer of the master plan at that point. Next, she met with and talked to Sam Burgess at the
County Planning and Land Use department, and went through the file. She stated what she and
Mr. Burgess determined was that tracts 2 and 3 were set aside and platted as permanent private
space and that tracts 1, 5, and 4 were still just fee‑simple. The tracts happened to have golf course
holes on them, but as far as their potential, that was a mimic of what on January 23, 2017, Sam
Burgess sent a note to Mr. Jesse Boles at The Cape HOA that they had been requested by the
office to offer their opinion, and it is their opinion that the balance of the recorded golf course
space at The Cape has not been encumbered as open space, such as tracts 2 and 3; and is not
subject to the previous zoning ordinance provision. She said that went back to the 1992 letter
from New Hanover County Planning Director Dexter Hayes to Mr. John Davis, again, of The Cape,
that said the balance of The Cape subdivision, what is there now as of 1992, and set aside as open
space or developed as residential lots, satisfies itself, and the County staff are not going to look
at it anymore. It has expired the original. Therefore, the balance of The Cape subdivision
properties is still zoned R‑15 and may be developed either conventionally at 15,000 square feet
or at 2.5 units per acre in a performance scenario. Ms. Wolf stated that’s where she based, as
applicant for the property owner, the projects she has submitted to the TRC for preliminary plan
approval. She pointed out on the slide that tracts 1, 4, and 5 are shown in yellow. Their density
calculations at 2.5 units per acre are there. She stated that became sort of her new master plan.
She said they proposed development of tracts 4 and 5 as Brad Schuler pointed out, and they sit
individually as density for that appropriate acreage times 2.5 units per acre, and that is all the
density they have requested. As far as storm drainage, the same thing has occurred in Bermuda
Dunes, Tiara Park, Cassimer Commons, and Capeside Village. All these projects have been since
1992, and every one of them has satisfied its own acreage to density, its own stormwater
management, and its own open space dedication. She added that’s exactly what we’re doing, so
the precedent has been set over the years for the same thing the applicant has proposed.
Ms. Wolf commented that one of the things that came up was storm drainage, which will
absolutely be a factor in this project. The applicant does take a very close preliminary look at it.
In the case of these two projects, both would be self‑sufficient with their stormwater water
quality control and their quantity control. Ms. Wolf stated that both projects as outlets drain
away from The Cape, so it’s never been contemplated that the applicant’s properties were part
of The Cape’s stormwater system. She noted that, to the best of her knowledge, The Cape had
no requirement, and they are not under any particular permit for a stormwater system. Ms. Wolf
stated she would be happy to answer questions on what she did, confirming that she was the
land planner and went through the TRC process to the best of her knowledge through all the
appropriate subdivision regulations.
Attorney Sam Franck stated beyond the issue of density, the appellant bases their
argument on some incredibly conclusory statements of law, statements that are well beyond the
scope of matters that should be considered by the TRC, and well beyond the scope of matters
that should be considered by the Planning Board. First, regarding stormwater, the fundamental
premise in the appellant’s brief, that the developer must rely on their stormwater system, is
patently false. As Ms. Wolf just explained, the developer is prepared to and intends to treat
stormwater on our own site in accordance with applicable law.
Page 27 of 45
Attorney Franck said, regarding access, they refute the appellant’s assertion that they lack
access over those roads. The owner of this land today and their predecessors in title have enjoyed
access over those roads for over 30 years. They have contributed to the cost of maintaining those
roads for as long as his client can remember. That issue is one that needs to be resolved, but it's
not an issue in front of the TRC or an issue in front of the Planning Board. Attorney Franck said
the TRC appropriately dealt with that by stating clearly that the applicant on the TRC application,
Southern Destiny, would need to reasonably demonstrate how they achieve access, and they are
prepared to do that. The additional points raised in the appellant's subsequent writing and in
their argument, tonight are beyond the scope of what the Planning Board should consider
because they were not properly pled. He briefly addressed those in the interest of time. He stated
the concept that the golf course was dedicated is preposterous. The idea that a plat that lacks a
designation of future development means that the land can never be developed is incredible.
Imagine how much land in New Hanover County could not be developed if that sole lack of a
future development note so restricted it. Attorney Franck stated there were also several
references in the appellant's application and presentation that suggest that the subject land is
restricted. He directed their attention once more to the map, which clearly shows the 61.77 acres
that is restricted, and the tract 4 and tract 5 property, which is not restricted. Attorney Franck
stated in conclusion, there have been no errors that were identified in the TRC’s evaluation, and
certainly no material mistakes that would justify the Planning Board remanding or overturning
the TRC’s decision. For those reasons, the respondent would ask that the Planning Board approve
the TRC’s approval. Mr. Franck offered to answer questions from Board members.
Noting the respondent’s time had not expired, Chairman Rawl asked if the respondent
would like to call any other members of their team to speak in support of their argument.
Attorney Franck requested that any additional time the respondent had be rolled into
their rebuttal period if needed.
Chairman Rawl opened the appellant rebuttal period.
Appellant Rebuttal
Attorney Gary Shipman stated the very nature of this appeal is that the preliminary plan
must show that the property is suitable. It does not do that because they do not have access.
Once again, we've challenged the applicant to tell you how they get it, and they say they’ve had
it for thirty years. He even made a statement that they have contributed to the cost of the
maintenance of the road. What he neglected to tell you is that was pursuant to a license
agreement for so long as it was maintained as a golf course, with that license to expire if the
property no longer became used as a golf course, so all rights to use any of the streets of The
Cape are contingent upon this property continuing to be used as a golf course. There is no access
otherwise, and therefore, the plan itself is not suitable. That's the very nature of the appeal. It
must on its face show that it's suitable for development, which includes the access, which
includes the evacuation plan. Attorney Shipman said the applicant has been trying to fix that,
Page 28 of 45
because now they’re trying to get access off River Road. He thinks they recognize they don’t. it
will be a new plan. Attorney Shipman said they know they don't have legal access, and without
legal access, this site is not suitable. However, with the approval of the preliminary plan, the
Planning Board is saying that it is, and saying that the owner/developer can proceed to sell lots
within this subdivision without these critical issues being resolved. Attorney Shipman agreed this
is unique. He remembers when the County granted appeals all the way to the County
Commissioners for subdivision approval, and he thought it was a bad idea then. But, from a policy
standpoint, when the County Commissioners did that, they said it was so they could get out in
front of subdivisions that should never be approved, so they don’t get the consuming public
alarmed and don’t get adjoining property owners alarmed. If there are issues that need to be
addressed, they ought to be addressed before a preliminary plan is approved, not after. Attorney
Shipman said again, this plan should be reversed, these issues should be studied, and this
applicant should show the board that this plan is suitable; and this plan doesn’t do that. Attorney
Shipman said he would be happy to answer any other questions the board members might have.
Chairman Rawl asked if board members had any questions for Attorney Shipman.
Chairman Rawl stated Mr. Shipman had mentioned a license agreement that explicitly
states that the utilization of those roads over the last thirty years was only pursuant to its being
utilized for a golf course.
Attorney Shipman stated he has a copy of that license agreement for Southern Destiny to
utilize the roads and he would be happy to provide a copy of the license agreement to Deputy
County Attorney Huffman. In response to Chairman Rawl’s inquiry, Attorney Shipment confirmed
that the license agreement explicitly states that Southern Destiny can use those streets for so
long as it’s used for a golf course. Attorney Shipman then stated the respondent had been
notified by the HOA that this license has been terminated or will be terminated.
Board Member Jeffrey Petroff asked Attorney Shipman to expand on the term “easement
by dedication” he had used in his opening statement.
Attorney Shipman explained, for instance, the plat of Section 4A of The Cape was
recorded in 1984, at a time when The Cape golf course and The Cape were owned, under
common ownership, by The Cape Joint Venture. The Cape golf course, number 4, is depicted on
the map, and hole 6 or 7 is also shown. Attorney Shipman stated when plats are recorded in a
subdivision and lots are then sold thereafter by reference to maps that show this golf course, the
courts have said that constitutes an easement by dedication. The courts have said that becomes
an easement appurtenant to the owners of those lots adjacent to the golf course. They acquire
an easement and have a right to have those areas kept open. He explained that many times what
you see in golf course communities is instead of labeling it a golf course, hole number 4, they
either don’t label it at all or they label it for future development. He reported that where golf
courses have been successful in being converted into subdivisions, it’s because the developer
specifically reserved the areas for future development. Attorney Shipman stated this is what the
appellant believes constitutes an act of dedication of these areas, and these are not the only
ones. These are the ones that are the subject matter of the Windsor Pines subdivision.
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Board Member Petroff inquired if the subject property, the golf course, is not within the
metes and bounds of that plat.
Attorney Shipman confirmed that the subject property, the golf course, is not within the
metes and bounds of Section 4A of The Cape, but under common ownership; not within the
metes and bounds of Colony Green garden homes, but under common ownership, and that’s the
point. He explained at the time that this was done, these properties were under common
ownership. Had they not been, then, no, the developer of Colony Green and the developer of
Section 4A of The Cape could not dedicate parts of the golf course to the owners in Section 4A or
to anybody else. However, because it was under common ownership and because he labeled it,
and as Mr. Harrelson will tell you, that's why he sold golf course lots, and why he labeled it as a
golf course. It was because he intended that these particular areas forever be a golf course, and
not be developed. Attorney Shipman explained that is what he meant by when he said easement
by dedication.
Hearing no other questions for Attorney Shipman and seeing no other speakers for the
appellant, Chairman opened the respondent’s rebuttal period.
Respondent Rebuttal
The Respondent’s Attorney, Sam Franck, stated he wasn’t sure what license Mr. Shipman
was talking about. He stated they were not familiar with such a license. They certainly hadn’t
heard anything to the effect of it being revoked, and we don't think we need a license. He said
when Mr. Shipman provides a copy of that alleged license agreement into evidence this evening,
he’d be grateful if he’d share a copy with him also. He noted Mr. Shipman had made several
references to what the courts have decided and would decide in this matter. Thank goodness the
Planning Board is not on the hook to know what a court might or might not decide in this matter.
The issues of private property rights are not before the TRC and are not before the Planning
Board. Attorney Franck said the consistent conclusory references of law to what a court would
decide are misleading, and most importantly, irrelevant to the board’s consideration of whether
the TRC made a mistake. Attorney Franck stated that the appellant referenced the word
"suitability" over fifty times in his presentation and rebuttal. He noted that is not a standard by
which the TRC is supposed to assess a preliminary plan. That word is not used. The TRC is
supposed to assess a preliminary plan to evaluate whether it complies with the technical
requirements of the subdivision ordinance. This land is not used as a golf course. It used to be,
but it isn't anymore. The golf course closed in connection with Hurricane Florence and hasn’t
been reopened. He said they have been very clear in their communication with the homeowners
association that they don't intend to reopen it. This is property that's owned by Southern Destiny
that can be subdivided by-right, and it’s appropriate to identify it as such. He said for a significant
period of time, his client operated a business that was a recreational amenity to the people who
owned land near that property, and did so at a loss. It was an unsuccessful business for several
years. The people who live in The Cape community appreciated having that recreational amenity
available to them, like we might appreciate a good restaurant or another private business that's
available in our nearby communities. Attorney Franck stated the appellant was trying to compel
Page 30 of 45
the Planning Board to compel his client to continue to operate a business that they liked. He said
that is absurd and is the equivalent of asking the Board to compel a restauranteur to continue to
operate a popular eatery long after that business is no longer successful or long after the owner
of the business decides for another reason to close the business. Attorney Franck stated, once
again, there have been no allegations of error by the TRC that rise to any level close to materiality.
In fact, he would contend there has been no allegation of error by the TRC at all. For these
reasons, he would ask the Planning Board to confirm the TRC’s approval and deny the appeal.
Hearing no other questions for the appellant or respondent, Chairman Rawl closed the
hearing and opened the Planning Board discussion period.
Board Member Ernest Olds asked staff to explain what would happen if the Planning
Board denied the appeal and affirmed the decision of the TRC, and what would happen if the
Planning Board overturned the TRC’s decision.
Deputy County Attorney Sharon Huffman stated if the Planning Board upholds the
decision of the TRC, then the appellant, The Cape HOA, could appeal the Planning Board’s
affirmation to the County Commissioners. She stated if the Planning Board reverses the decision
of the TRC, she was somewhat torn because the ordinance is not clear what the next step could
be. It was her inclination to say, if the TRC decision was overturned by the Planning Board such
that the developer no longer at that point had an approved preliminary plan, the developer could
appeal to the County Commissioners. She would need to study that some more.
Board Member Olds stated he would like to follow up with a request for planning staff to
talk about other related or similar cases where the issue of access is not perfectly clear, and how
that is typically handled and where the outcome is.
Senior Planner Brad Schuler stated to answer that question, he would refer to a letter
from Dexter Hayes, dated August 10, 1990, that was included in the packet, which references a
similar situation. That letter references a preliminary plat approved for another Section of The
Cape in which there was a question brought up about the road access. The letter states it was
the County’s position at that time that they could give preliminary plan approval. However, if it
was determined that access could not be provided from the subject road, that preliminary plan
would have to be modified to show a different access to that property. It has historically been
the County’s position to approve preliminary plans without the knowledge of the legal access,
but it would have to be provided prior to construction of the development.
Chairman Rawl stated the basis of the TRC is to look at the technical requirements of a
subdivision preliminary plat, and then subsequently release the applicant to pursue local, state,
and federal permits to then have approval to construct. The project is at a stopping point in the
process now, with this appeal coming forward. He asked staff to confirm if there had been any
release of permits for the project by the state, local or federal regulatory agencies.
Senior Planner Schuler confirmed, to his knowledge, construction‑related permits have
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not been issued for the property.
In response to Chairman Rawl’s inquiry regarding access, Senior Planner Schuler
confirmed the county has signed the preliminary plat, and the developer has proposed the sole
access through The Cape’s private road system.
Chairman Rawl commented that Appellant Attorney Shipman had made the comment
earlier that the release of the preliminary plat gives the developer the ability to sell lots, but that
would be inaccurate in his opinion. He stated it needs to get to a final recordation stage to have
sellable lots.
Senior Planner Schuler explained there is some language in the subdivision ordinance
regarding the ability to enter contracts under a preliminary plan. He told them to keep in mind
the infrastructure needs to be in place before anybody can get a certificate of occupancy (CO) to
live in the dwelling unit, while the county allows building permits and contracts.
Chairman Rawl interjected he thought it would be reservations more than contracts if he
wasn’t mistaken.
Appellant Attorney Shipman pointed to Section 32.5 of the subdivision ordinance for
clarification.
Chairman Rawl thanked him, noting the public comment portion of the hearing had been
closed and the Planning Board discussion period was in progress. He then asked Senior Planner
Schuler what the County’s position would be to approve this for construction, to accept
construction drawings, and release the applicant for earth‑moving endeavors to actually deploy
onsite, get a set of permits, and actually begin clearing and grading, and whether the County
would require some formalization or acknowledgement that the developer has legal access to
get the property given this is not a NCDOT road.
Senior Planner Schuler confirmed the chairman was correct. There was a condition of the
TRC’s approval that a road maintenance agreement be provided prior to construction plan
approval, and with that it would include the acknowledgment that there's some form of legal
access to the site.
Chairman Rawl stated, as he understand it, the developer has yet to provide that to the
County, and the appellant has indicated that he has a legal document in Ms. Huffman’s
possession that shows there’s explicit content that says Southern Destiny can only access this
property under a license agreement if the property is being utilized for a golf course. He inquired
if the County has a copy of that agreement.
Senior Planner Brad Schuler stated he does not have a copy of that license agreement.
Noting this is unprecedented territory for the current Planning Board, Chairman Rawl
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stated he was trying to understand where the process is and what the County’s stance would be
if the preliminary plat was released in order for them to start garnering permits from the state,
local and federal regulatory arms, which it sounds like it's there, but the County staff has not
gotten the documentation for legal access to this proposed townhome subdivision.
Senior Planner Brad Schuler confirmed Chairman Rawl was correct that the County had
not received documentation showing legal access to the proposed townhome development.
Board Member Paul Boney stated he should recuse himself from the vote because he had
not heard all the testimony. Deputy County Attorney confirmed Mr. Boney should recuse himself
from the vote on the appeal.
Board Member Jeffrey Petroff clarified that there were only three issues stated in the
appeal that the Planning Board could consider when making their determination on the
subdivision appeal. He said the first issue is density, and staff seemed to indicate the density is
appropriate, and that is does conform. The second issue is stormwater, which truly is not
discussed or evaluated at that level. He said the developer would have to do a full stormwater
design for County and State requirements on their own property, and they’ve indicated that’s
what they would do. He commented there could be some issues if any of that land is currently
being utilized for any type of stormwater devices for the surrounding neighborhoods and what
impact that would have. He asked if he was correct in assuming that would be an issue that would
be worked through upon an application for a stormwater permit. He also inquired if it was correct
that if any kind of infrastructure falls on the developer’s property that is an integral part of the
existing neighborhood stormwater system, they would be required to preserve that in some way
or accommodate that on their property.
County Engineer Iannucci confirmed Mr. Petroff was correct. He then stated, as
Mr. Schuler had pointed out, the existing drainage would have to remain. If there’s an existing
drainage conveyance passing stormwater through the site, that would have to be maintained. In
addition to that, the County stormwater ordinance went into effect in September of 2000, so
subsequent development in places, even some of the Sections of The Cape and other
neighborhoods, must meet the county’s pre- and post-requirements. All those things must be
improved during the construction phase, and must be in place prior to him, as the county
engineer, signing the plat. He said those must be in place prior to recording the Section the
developer is trying to develop.
In response to Board Member Petroff’s inquiry, County Engineer Jim Iannucci confirmed
that is not revealed or discussed at the TRC level. He stated this is just a preliminary plan. The
developer must go back and do that and demonstrate all those things.
Board Member Petroff asked regarding the third issue, access, if showing an access on
their property typically suffices for the TRC review, and that any kind of road connecting to any
other road is sufficient for this high level TRC plan without any guarantees that it is an attainable
access.
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Deputy County Attorney Sharon Huffman stated it is not unusual for TRC to approve a
preliminary plan that does not have a public road leading to the property. It isn’t a regular
occurrence, but it certainly happens on occasion that the TRC is looking at and preliminarily
approving a subdivision, with the developer knowing that they're going to have to obtain a road
maintenance agreement in order to traverse a private road.
Board Member Petroff commented that this approval that the TRC made really grants
them the ability to start design. It doesn't give them any ability to sell.
In response to Board Member Petroff’s inquiry regarding whether bonding is allowed in
New Hanover County, Chairman Rawl responded that bonding is allowed in New Hanover County,
but the bonding elements are pertinent to essential site improvements, and that is after
infrastructure has started on a site. A sidewalk would typically be bonded at the end of a project.
That’s not when a site plan is released from TRC and nothing has happened onsite. It’s when
water and sewer are in the ground and streets are constructed, and a developer wants to bond
sidewalks and street trees because they may get damaged during vertical construction.
County Engineer Jim Iannucci stated Chairman Rawl’s comments were correct. He then
clarified that the stormwater aspect of the project could not be bonded. Stormwater would have
to be done and certified by a professional engineer prior to a recorded plat.
Board Member Allen Pope stated he had actually sat on TRC reviews several times, and
he knows that when a plat or a preliminary plan comes to TRC, it’s not the TRC’s job to determine
whether legally they have the responsibility to have access or whether or not they have the
sufficient means to convey water. That is the property owner’s responsibility when they go to
construction plans and apply for permits. Mr. Pope stated, at this point, he doesn’t see anything
that TRC did that he would be able to reverse the TRC approval.
Chairman Rawl commented that some of his questions to Mr. Schuler were to educate
himself and help the people who are here to listen to this determination come to the
understanding that the release of the preliminary plat is essentially garnering the applicant for
this development to go out and start applying for local, state and federal permits and to engage
an engineer, not just a site planner, and start working through the actual calculations and
dynamics to actually install a subdivision. He agrees with Mr. Pope that he doesn’t believe this is
a misstep by the TRC. There are a lot of intricate nuances that need to happen for machinery to
show up and earth to be moved and shaped into this subdivision, and it’s a far cry away from that
happening. He noted Mr. Shipman had talked about suitability at the beginning, and he
understands the suitability aspect when you come to TRC does have some bearing. You need to
show proposed access, but it is the responsibility of the developer to acquire that right-of-way
and driveway permit to access the property. Chairman Rawl stated it is his opinion that the TRC
didn’t do anything wrong and hasn’t had any missteps in their approval. He added he does think
there are substantial steps the developer needs to achieve in order to get approval to move
forward with this development.
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Board Member Ernest Olds stated he didn’t want to forget the neighborhood residents,
who have a lot of concern at stake here. He doesn’t think they’re giving up anything here. We’re
at an impasse that revolves around access, and the TRC isn’t at fault for that. There are avenues
forthcoming for both parties, and they’ll have to work it out before anything meaningful happens.
Mr. Olds stated he believes the TRC did what they should have done, so he would like to make a
motion.
MOTION: Board Member Ernest Olds MOVED, SECONDED by Board Member Allen Pope to
affirm the decision of the TRC in whole.
The Planning Board voted 5-0 to affirm the decision of the TRC in whole. (Ayes: Girardot,
Olds, Petroff, Pope, and Rawl) (Recused: Boney).
Chairman Rawl thanked everybody for their time, and announced the Planning Board
would take a five-minute recess.
RECESS
Item 2: Rezoning Request (Z19-04) – Request by Hubert S. Ward, Jr., on behalf of the property
owner, Vincent Malave, to rezone approximately 0.38 acres of land located at 2624 Castle
Hayne Road, from (CZD) B-1, Conditional Business District, to B-1, Business District.
Senior Planner Brad Schuler 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. Mr. Schuler presented the following staff report.
This is an application for a zoning map amendment, commonly referred to as a straight
rezoning. The subject property is currently zoned as a Conditional B-1 district and is in the
Wrightsboro commercial node area. As shown on the zoning map, there are business
zoning districts and office zoning districts in the general vicinity. Nonresidential uses
continue north on the east side of Castle Hayne Road, with the exception of two residential
properties located between the subject property and a gas station. The property is
currently undeveloped and consists of approximately 0.38 acres of land.
This Conditional B-1 district was originally approved in 2012 and allowed for the
development of a Family Dollar retail store on the land abutting the subject property to the
south. While the subject property was included in this conditional rezoning application, it
was under separate ownership and the conceptual site plan did not indicate that any
development would take place on it. Therefore, this subject property must remain
undeveloped under its current zoning district. For the subject property to be developed, it
would either have to be rezoned or have the conditional zoning district modified. The
inclusion of this property in the 2012 rezoning allowed the parking of the Family Dollar to
be placed a little closer to the property line, as there are no buffer requirements between
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two commercially zoned properties.
Because this is a straight rezoning and not a conditional rezoning, uses that would be
allowed on the property are those allowed by right or by special use in the B‑1 district.
There is no site plan that is attached to this application and no conditions can be added to
the approval. The B-1 district currently permits a total of 59 uses by right and 11 with a
special use permit. In general, the B‑1 district permits the uses shown on the slide, which
are mostly commercial with retail, restaurant, and office‑related uses. There are other
types of uses, such as day cares, and automobile services. The applicant is here and can let
you know exactly how he plans to use the property.
Regarding the zoning regulations of the property, if this is rezoned and developed as B‑1,
there would be a minimum 20‑foot buffer required along the northern and eastern
property lines, a 50‑foot building setback along the front, and additional landscaping
requirements, including street yard, parking lot and foundation. In addition, it will be
subject to other approvals like the NCDOT driveway permit requirement.
As for traffic, four projects in the area have conducted a traffic impact analysis (TIA). Of
those projects, all the physical improvements required for Castle Hayne Road have been
installed. According to nearby traffic counts, Castle Hayne Road is currently operating
within its capacity. Lastly, there is a State Transportation Improvement Project (STIP)
proposed for the area, which will widen Castle Hayne Road from I‑140 to Martin Luther
King Parkway.
Several pictures of the area show the subject property, the Family Dollar, the property next
door, the intersection of Castle Hayne Road and North Kerr Avenue, which is nearby, and a
close-up of the property line between the two properties.
The 2016 Comprehensive Plan classifies the subject property as Community Mixed Use.
This place type focuses on small scale, compact Mixed-Use development patterns that
serve all modes of travel. Appropriate uses within this classification include office, retail,
mixed use, recreation, commercial, institutional, and multi-family and single-family
development. The proposed B-1 rezoning is CONSISTENT with the 2016 Comprehensive
Plan because commercial districts are identified as a typical zoning district within this place
type, and it does allow for the types of development promoted in this place type, which
are the retail and office‑related uses.
Senior Planner Schuler concluded the presentation and offered to answer questions
from the Planning Board.
In response to Board Member Ernest Olds’ inquiry, Senior Planner Schuler clarified that
the subject parcel is not owned by the owner of the Family Dollar store; and as part of the
conditional rezoning for the Family Dollar, the owner of the property agreed not to develop
his property, resulting in no allowed uses for it currently.
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In response to Board Member Olds’ inquiry regarding the benefit to the Family Dollar
retail store owner, Senior Planner Schuler confirmed that including the subject parcel in the
previous rezoning benefited the owner of the Family Dollar, in that they were able to configure
their parking lot in a way they wouldn’t have been able to if it wasn’t conditionally rezoned.
Mr. Schuler also reported that the owner of the subject tract is different than the
owner of the property at the time it was rezoned to this district.
Board Member Olds commented that the proposed rezoning seemed to be going
backward and inquired if the benefit the Family Dollar received from conditionally rezoning the
subject property would be removed if this rezoning request is approved, creating a
nonconformity.
Senior Planner Schuler stated that the benefit the Family Dollar got from the conditional
rezoning would not create a nonconformity on either site because the current applicant is
requesting a B-1 zoning district, and no buffer is required between two B-1 zoning districts. He
stated if the subject property had not been rezoned in 2012, the Family Dollar would have been
subject to an additional 20-foot buffer requirement and setback requirement along the subject
parcel’s property line.
In response to Board Member Olds’ inquiry, Senior Planner Schuler confirmed this little
parcel could have been rezoned to straight B-1 in 2012, but it was not; it was included in the
conditional district application.
Board Member Olds commented that it would seem to be wrong to allow a property
owner to benefit from a little bit of trick here, and then take that away some years later and have
a nonconformity that is unfair. However, that isn’t the case here, so he felt better about the
request. He said he wanted to make sure the board understands this is a property owner that
has no right to build anything right now, which is unusual.
In response to Board Member Paul Boney’s inquiry, Senior Planner Schuler confirmed that
the subject property was rezoned this way with no uses at the same time the Family Dollar was
rezoned.
Board Member Boney asked if the current owner of the subject property is the same
owner that is with us today.
Senior Planner Schuler explained the applicant is not the property owner. Because this is
a straight rezoning, the owner is not required to be present at the public hearing.
In response to another inquiry by Board Member Boney, Senior Planner Schuler explained
that the owner of the subject property that is now requesting an additional rezoning was not the
same owner when the original rezoning in conjunction with the Family Dollar was approved. He
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also stated he did not know if the subsequent purchaser of the subject property knew about the
zoning restriction on the property or that it was unbuildable at the time the property was
purchased.
Board Member Boney stated that was an important detail to him, and inquired if that
property owner had also owned the Family Dollar retail store property and sold it to them.
Senior Planner Schuler responded that the subject property and the Family Dollar store
property were under separate ownership at the time of the conditional rezoning. Since that
conditional rezoning, the ownership of the subject property has changed.
Hearing no other questions for staff, Chairman Rawl opened the public hearing and
recognized the applicant.
Hubert S. Ward, Jr. stated he is the applicant and would like to have 2624 Castle Hayne
Road rezoned so he can put a storage yard on the property. He explained he owns a wrecker
service and has a storage lot within the City of Wilmington. Because that lot is not large, he needs
a second storage yard within New Hanover County to relocate vehicles to for the first ten days
because he is not allowed to move vehicles out of the county during that ten-day period. If the
insurance companies don’t pick up the vehicles, he must move them. After the ten-day period,
vehicles are moved out of New Hanover County. Mr. Ward stated the storage yard will not be a
junkyard. He plans to build a nice-looking, well-maintained facility, where the towed vehicles will
not be seen.
Chairman Rawl stated it was apparent the applicant is not familiar with the rezoning
process. We do need this for the record to be able to deliberate as a board whether this is a
fitting location for the proposed use. He asked if the applicant could possibly go into more detail
about access to the property, the proposed hours of operation, and the general concept of his
business model. Chairman Rawl then inquired if the applicant would be repossessing cars and
holding them onsite or picking up cars that have broken down and storing them onsite. He
explained that those details would help the Planning Board make their determination.
Mr. Ward stated he plans to store wrecked and broken-down vehicles on the site. He
explained his business doesn’t handle repossessions so there wouldn’t be that type of unhappy
customer traffic coming to the site. Mr. Ward stated that moving vehicles from one lot to another
would allow him to put more vehicles at his current location. He stated he plans to install a nice
fence around the site. The hours of operation would be daytime hours only, because he wouldn’t
be moving any vehicles to the site during the nighttime hours.
Chairman Rawl asked if board members had any questions for the applicant.
Board Member Ernest Olds inquired if there would be a building on the site or if it would
strictly be a fenced yard with vehicles.
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Mr. Ward responded that he had no intention of having staff onsite, noting it would not
be necessary. He stated there would be a small building onsite to secure personal items left in
vehicles if the vehicles must be moved out of the county. People in the City would be able to pick
up their personal belongings. He stated there would be electrical power to the property for
security cameras that will be installed throughout the site, allowing the premises and vehicles to
be monitored remotely in lieu of onsite security personnel. He confirmed there would also be
security lighting on the property at night, and that a six- to eight-foot high, opaque privacy fence
would be installed completely around the site.
In response to Board Member Olds’ inquiry, Senior Planner Schuler explained the
applicant would be required to provide buffering only from the residentially zoned property.
Mr. Ward reported that there is already a security light on the side where the Family
Dollar store is located, so he would only need to install another security light on the other side of
the property where the buffering would be located. In response to Board Member Olds’ inquiry,
he confirmed that the cameras will provide the security monitoring and the site will not need to
be lit up like a used car lot. Mr. Ward also confirmed there would be a gate on the front side of
the property, along Castle Hayne Road.
Board Member Olds noted the entrance would require a NCDOT driveway permit.
In response to Vice-Chairwoman Girardot’s inquiry regarding the fence, Mr. Ward
confirmed the applicant would fence the entire property for security purposes, and to shield the
site from view from Castle Hayne Road and the adjoining properties. He also confirmed the fence
would be opaque and would be 6-8 feet high. He commented that the City of Wilmington
required a 6-foot high fence around his storage yard within the city limits.
Board Member Allen Pope stated it was his understanding that this site would not be the
applicant’s primary lot to bring vehicles to, but would be a secondary storage lot.
Mr. Ward confirmed the proposed storage yard would be a secondary storage lot.
Board Member Paul Boney questioned the ownership of the lots at the time of conditional
zoning. He asked if this was a residual piece from the Family Dollar store that was used as a
condition of the rezoning or a separate parcel that made a deal with Family Dollar. He inquired
what would happen to the buffering and the Family Dollar store parking lot if the rezoning
request is approved.
Planning & Land Use Director Wayne Clark said it may not change Mr. Boney’s opinion of
the overall issue, but the owner of the property to the north with the house, is the same person
that owns the subject property; however, he wasn’t the person that owned the property when
the subject property was rezoned in conjunction with the adjacent Family Dollar store property.
He explained at some point, the same man owned the house to the north and this vacant lot so
those two lots are owned together. Director Clark said he couldn’t speak to that owner’s
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motivation, but he was looking at the two parcels together. The current owner didn’t buy this
subject property as an individual parcel; it was purchased together with the residential property
containing the house to the north. Director Clark said he could see the confusion if the owner
had bought this piece separately with the conditional restriction on it that prevents any
development on it. Director Clark said he thinks the owner bought it because it was tied to the
residential property to the north, and there was potential there. Then, this gentleman, Mr. Ward,
showed up and said he would like an option to buy this piece of property from the current owner,
who owns the adjacent house, along with this parcel. That option to buy this subject parcel has
led to this rezoning request. Director Clark stated it may not at all change the board’s concerns
about whether the proposed zoning district is appropriate for this area, but it appears to be tied
to the fact that the joint ownership was to the north, and this came in as an option after the fact.
Board Member Olds commented that, if nothing else, the gentleman that purchased the
house bought this parcel to preserve the open space between the residence and the Family Dollar
store.
Planning & Land Use Director Clark said it’s less of a risk to buy the parcel adjacent to your
property.
Board Member Boney commented that the Family Dollar store wouldn’t have been able
to put their parking lot in there without that B-1 deal with the previous owner of this parcel and
the property to the north.
Planning & Land Use Director Clark stated the Family Dollar store would have lost 20-feet
of land, so it certainly made it a more feasible project.
Board Member Boney and Director Clark agreed that the Family Dollar store wouldn’t
have been able to get their parking lot in the way it is currently designed, without this parcel
being included in the previous conditional rezoning.
Board Member Boney expressed concern because it appeared that the Planning Board
was being asked to clean up a problem that happened because Family Dollar made a deal with
the former property owner of the property to the north. He stated his concern had nothing to do
with Mr. Ward and Ace Wrecker, noting Mr. Ward was a nice guy. He simply has concerns about
how this situation occurred.
Director Clark commented that if the CZD for the Family Dollar store had included some
uses for the parcel when that rezoning was approved, he thinks staff would have recommended
approval of something on that land. He didn’t believe staff would have recommended the
property stay vacant.
Board Member Boney noted that it didn’t include any uses and the former owner agreed
to it to get the Family Dollar store there, so that is his problem with the request. He expressed
his dislike about how the situation unfolded.
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Mr. Ward and Director Clark reiterated that there was a different landowner when the
previous rezoning took place.
Board Member Boney commented that the previous landowner either didn’t tell the
current landowner everything he knew about it or he bought the property, knowing about the
zoning.
Mr. Ward confirmed that he had not been told about the previous rezoning details.
Director Clark stated the question in front of the board is whether a straight B-1 zoning is
appropriate on this site.
Chairman Rawl stated the Planning Board should deliberate on the rezoning request and
asked if there were any other questions for the applicant.
In response to Vice-Chairwoman Girardot’s inquiry, the applicant, Mr. Ward, confirmed
that a treated wooden fence would be installed around the entire site.
In response to Board Member Olds’ inquiry, Mr. Ward stated he does not currently own
the property; however, he plans to purchase the property pending the result of this rezoning
request. If the request is not approved, he won’t purchase the property.
In response to Board Member Boney’s inquiry, Mr. Ward reiterated he wants to purchase
the property. He noted that the owner wants to sell both parcels, but he can’t move forward until
he knows if he can use the property for his business. Mr. Ward explained he was told the property
was zoned B-1 originally, and that’s why he started working toward purchasing the property, and
obtaining the necessary permits. When he went to the county to obtain permits, he learned that
the parcel was zoned conditional B-1. He stated that he did not know that when he started the
process, and that the property owner had told him that he had also been told the property was
zoned B-1.
Chairman Rawl asked if the board had any other questions applicable to the straight B-1
rezoning. Hearing none, Chairman Rawl opened the opposition portion of the public hearing. He
apologized for the delay in the public hearing for this item.
Opposition
Mr. Babatunde Olatidoye stated he is the owner of the Family Dollar store property. He
stated that he had received a letter regarding the rezoning last week from the Planning & Land
Use department and had tried to do the research to find out what's going to come out of that,
but he was unable to find anything about the proposed use for the land. He explained he had
purchased the property from Mr. Swain last year, and it was his understanding that there was
nothing going out there. He thinks there needs to be more research done to see how this
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gentleman is going to make use of this property for the rezoning that he's applying for. He stated
he would think in this particular area they should probably have something that is more
conducive and more aesthetically pleasing for the area in terms of development and growth. He
said if the property is just going to be used as a car lot where wrecked vehicles are parked in
there, he doesn’t think it will be a good sight for this area. Mr. Olatidoye said if the rezoning is
granted, there needs to be more research done to find out what the agreement was prior to this
person trying to negotiate a deal to buy that property from somebody else. He expressed concern
that it was a lot of money to pay for that property to have something right beside it that is not
going to enhance it.
Chairman Rawl stated that his comments were duly noted, and the board appreciated
him stating his opinion on the rezoning proposal.
In response to Board Member Jeffrey Petroff’s inquiry, Mr. Olatidoye stated he owns the
Family Dollar store property, and that the Family Dollar is leasing the property from him.
Chairman Rawl inquired if Mr. Olatidoye had been approached regarding permitting a
driveway tie-in or if he knew if there was an existing driveway tie-in on his site plan that would
permit the applicant to access the subject property through the Family Dollar store parking lot.
Mr. Olatidoye responded that he was not aware of any driveway access, but he would
have to talk to Mr. Swain to find out if there was anything on record giving the subject parcel
access through the Family Dollar store parking lot.
Board Member Paul Boney asked Mr. Olatidoye who owned the subject property when
the property was rezoned for the Family Dollar store.
Mr. Olatidoye stated he wasn’t sure who owned that property when it was rezoned,
noting he had bought the property from Mr. Swain in October of 2018, and Family Dollar is leasing
the building from him. In response to another inquiry from Mr. Boney, Mr. Olatidoye explained
that he had purchased the property and building after the Family Dollar store was built.
Chairman Rawl opened the rebuttal period and invited the applicant to come forward to
rebut anything he had heard during the hearing or make any additional comments in support of
the rezoning request.
Rebuttal
Hubert Ward, Jr., the applicant, declined to make any additional comments during the
rebuttal period.
Hearing no other comments in support of the application, Chairman Rawl opened the
opposition rebuttal period.
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Opposition Rebuttal
Babatunde Olatidoye, an adjacent property owner, stated essentially in order for the
rezoning to be granted, he thinks that more work needs to be done to find out the ownership
and what the agreement was in the interim prior to the design.
Hearing no other comments, Chairman Rawl closed the public hearing and opened the
board discussion period.
Board Member Jeffrey Petroff stated he feels that the straight rezoning goes against the
trend that this area is experiencing. The County, the CFPUA, and the NCDOT are putting a lot of
money and improvements into the Castle Hayne area and it is in the best position for growth.
Mr. Petroff said he doesn’t see how the original conditional zoning was an error. The idea to put
that property into a B-1 zoning with some conditions makes sense to him. He would think that
any other properties that could go into B-1 would also have some conditions because the uses
are so broad. He stated he personally doesn’t think that is an appropriate place for that use. He
felt that what is happening around Castle Hayne does not lend itself to that type of use. He said
he appreciated Mr. Ward telling the board what he wants to do there, noting it wasn’t necessary,
but it opened his eyes to what could have been there. Board Member Petroff commented that
the opponent had made a good point in that he wasn’t opposed to something happening there,
but he wanted to make sure it was appropriate. Mr. Petroff stated he would agree that the use
does need to be appropriate, and that’s why the county has a conditional zoning district.
Chairman Rawl commented that the property is classified as Community Mixed Use in the
2016 Comprehensive Plan, and he feels that a B-1 straight rezoning would fall outside that
classification. He stated that with a straight rezoning, the county wouldn’t have any ability to
regulate future uses. For example, if the applicant sold this tract in the future, there would be a
variety of other businesses that could come in there that may not be suitable uses for that
property. It is the Planning Board’s responsibility to determine if a proposed use is suitable for
the area in which it will be located.
Board Member Ernest Olds stated he is in favor of the property being conditionally
rezoned because it was a conditional use in the first place to give the neighborhood a chance to
have some influence or effect on what would be going there. He didn’t feel it would be
appropriate to go backwards and release the property back to straight B-1. Mr. Olds stated the
opinion that there should be a conditional commercial use on that property, so he would not be
in favor of the straight B-1 rezoning.
Chairman Rawl entertained a motion from the Planning Board on the rezoning.
MOTION: Board Member Paul Boney MOVED, SECONDED by Board Member Jeffrey Petroff
to recommend DENIAL, as the Board finds that this request for a zoning map amendment of
approximately 0.38 acres from (CZD) B-1 to B-1 as described is:
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1. Consistent with the purposes and intent of the 2016 Comprehensive Plan because the
B-1 zoning district allows for the types of uses recommended by the Comprehensive
Plan for this area, and is identified as a typical zoning category for the Community
Mixed Use place type.
2. Not Reasonable or in the public interest because the B-1 district allows for uses that
are not in character with the surrounding area.
The Planning Board voted unanimously (6-0) to recommend denial of Rezoning Request
(Z19-04). (Ayes: Boney, Girardot, Olds, Petroff, Pope, and Rawl)
Chairman Rawl thanked everyone for their time and apologized for the delay in the public
hearing for the item.
Other Items: Development Code Update (“UDO Project”) – Proposed Zoning Districts
Senior Long Range Planner Rebekah Roth provided a status update on the Unified
Development Ordinance (UDO) project and the amendment that staff will bring forward for
consideration by the Planning Board in the near future. At the February Planning Board meeting,
Director Clark provided a brief update on the UDO project timeline. We engaged a consultant to
create the unified development ordinance. Since it will take more time, we didn't want to hold
up portions of the project that we could go ahead and move forward. We don’t want to keep
people from being able to use some of the tools we've been discussing for quite a while now, so
staff will bring forward a code amendment to be considered at the April Planning Board meeting,
to add eight new zoning districts that are already successfully used in the City of Wilmington to
the county’s zoning ordinance, and also bring forward improvements to the existing Planned
Development (PD) district. The new districts and the code reorganization will complete that core
UDO project and result in a single, easier‑to‑use county development code document and new
tools to allow for the types of development envisioned for the county's future.
Senior Long Range Planner Roth stated staff has come to understand that different
stakeholders have different expectations for what some of the technical changes to the code will
look like and how they will work in practice, so after the completion of the core UDO project,
staff will continue to strategically update targeted sections of the code beginning in the fall. At
the August 2018 work session, the Planning Board provided direction on key policy points. The
core project will address these points of direction, and those in red on the slide are incorporated
into the new zoning district amendment that will be brought forward in April. The proposed
amendment is also in accordance with the rules of thumb we've been using during the process,
specifically the new zoning districts provide the building blocks that we need to allow the
development patterns in the comprehensive plan, and since they're adapted from existing city
districts, they can provide some consistency in development in the portions of the county
adjacent to Wilmington. The county’s current residential zoning districts don’t allow the full
range of densities outlined in the comprehensive plan, so these five new districts are proposed
to fill in these gaps providing more housing options and potentially more affordability for the
county's residents. At the August work session, another item discussed was the inclusion of new
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commercial districts. As seen tonight, the county’s two primary commercial districts, B-1 and B-
2, have over time accumulated a very wide range of uses that people aren't always comfortable
putting on the ground without a conditional process. Staff is hoping that, especially this CB
district, will provide an alternative to conditional zonings so that we have a district that people
are comfortable putting on the ground because one thing we have learned is that requiring so
much to be conditional puts a constraint on better project and more flexibility when people have
to come in and make changes every time they want to do something a little new. Ms. Roth asked
that as board members read it, they keep their eyes open to anything that makes them
uncomfortable, because this is the point where those things need to be addressed. Staff is also
proposing a CS or Commercial Services district, which provides an alternative location for uses
like contractor storage yards that might not be best sited along Market Street or Carolina Beach
Road where they're highly visible, and where the land is costlier. We also want to make sure
they're located properly. Finally, staff has proposed one new Mixed-Use district and some
improvements to the existing PD district. Staff didn’t originally intend to adapt the city’s UMX
district to the county's code so it wasn’t presented in August, but over the last few months, staff
has heard from stakeholders that this might be a tool that could be used to build those urban
mixed‑use and community mixed‑use place types that we talk about in the comprehensive plan.
The proposed improvements to the PD, which were included in the August work session, are in
line with the direction staff received, and can be implemented right away. Senior Planner Roth
stated, to make it clear, especially for the people that might be watching from home, the new
districts are all considered to be floating districts, so they will not be applied to a piece of property
with coming through a rezoning process. If there's something people are a little apprehensive
about, it won’t necessarily be applied next door without residents having some say in the process.
She added that Mr. Clark said it also must be consistent with the comprehensive plan, and
reasonable and in the public interest. Senior Planner Roth stated because the amendment to be
considered in April is rather large, profile sheets have been prepared for each district to provide
upfront information so everyone can become more familiar with what is being proposed. Each
profile sheet includes the draft intent statement and a commentary box explaining where the
language came from. Current city and proposed county dimensional standards are shown side by
side to make it easier to see differences. Some potential changes, for instance, to allow for the
county's performance subdivision option in the residential districts, and things like that will be
included in that commentary box. The use permissions are also outlined side by side. She
explained this will help everyone understand how staff translated the city’s permissions and
adapted them to make sense in the county because we might use different terms or allow
different things than the city does in some districts. Senior Planner Roth stated that a couple of
districts, especially the UMX-Z, also have district‑specific requirements so a summary and a
commentary are provided for those, as well.
Senior Long Range Planner Roth stated the intent of providing the profile sheets is to help
everyone feel comfortable that they understand what’s being proposed in the amendment that
will be presented at the April 2019 Planning Board meeting. Ms. Roth reported that the profile
sheets will be added to the project's website tomorrow, and there's time for anyone interested
to review the profiles, ask questions, and provide feedback before the text amendment is
finalized. Ms. Roth stated that comments and feedback will be needed by March 21, 2019 so it
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can be considered in advance and addressed in the staff report. Staff is planning to release the
staff report and draft amendment earlier than the rest of the April 2019 Planning Board agenda
packet to make sure board members have time to digest the information, and feel prepared for
the April meeting. Senior Long Range Planner Roth offered to answer questions from board
members.
Chairman Rawl thanked Ms. Roth for the presentation and stated it would be helpful if
staff could coordinate either a workshop or a two-hour review at the next Planning Board review
session on the proposed UDO text amendment. He offered to sponsor lunch. He said he would
like to get fresh eyes on it and digest the information staff has put a tremendous amount of work
into preparing. He would like to have a brief educational summary presented by staff to the
Planning Board and inquired if that would be possible.
Senior Planner Roth asked if it would make sense for staff to give board members a week
or so to review the proposed amendment, and then contact board members to determine if it
will be necessary to meet as a group to review the amendment prior to the April meeting. She
stated she hoped that the profile sheets would answer most of those questions; however, she
would be glad to arrange an educational presentation as part of the board’s regular agenda
review or whatever works best.
Chairman Rawl stated staff had done a tremendous job on the text amendment materials
packet. This is a big undertaking that staff has gone through, and is a lot for the board to take in.
Given the magnitude of the information, he thought it would be helpful to spend at least an hour
going through the proposed amendment materials and hear from staff in a more compact setting.
Senior Planner Roth stated staff would explore the options available and forward that
information to Planning Board members.
Vice-Chairwoman Girardot reported she had been meeting with staff and others as the
UDO representative from the Planning Board throughout this process. They would like for
everyone to share this information with any groups or individuals, whether community
individuals or industry people, that could also provide input. As Ms. Roth said, we would like to
get the text amendment recommended for adoption at the April Planning Board meeting if
possible, so if anyone has any changes or questions on the proposed text amendment, in the
meantime, please let Ms. Roth know.
Chairman Rawl thanked staff for putting together a great presentation on the proposed
amendment, noting if there was an opportunity for a workshop, it would be helpful for him.
With no other items of business, the meeting was adjourned at 9:45 p.m.
Please note: The above minutes are not a verbatim record of the meeting.