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2006-05-01 Regular Meeting NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 578 ASSEMBLY The New Hanover County Board of Commissioners met in Regular Session on Monday, May 1, 2006, at 5:30 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Members present were: Chairman Robert G. Greer; Vice-Chairman William A. Caster; Commissioner Ted Davis, Jr.; Commissioner William A. Kopp, Jf.; Commissioner Nancy H. Pritchett; County Manager Bruce T. Shell; County Attorney Wanda M. Copley and Clerk to the Board Sheila L. Schult. Chairman Greer called the meeting to order and welcomed everyone present. INVOCATION AND PLEDGE OF ALLEGIANCE Pastor Tom Harcus, Pastor of Crossway Chapel of Wilmington, gave the invocation. Vice-Chairman Caster led the audience in the Pledge of Allegiance to the Flag. Chairman Greer reported that Andre' Mallette has been appointed to the position of Assistant County Manager continuing to oversee the Human Resources Department, with the addition of the Information Technology Department, Public Information Department, Public Safety Communications Center and Emergency Management Department. On behalf of the Board, Chairman Greer wished Assistant County Manager Mallette success in his new role. APPROVAL OF CONSENT AGENDA Chairman Greer asked if any member of the Board would like to remove an item from the Consent Agenda. Hearing none, Chairman Greer requested a motion from the Board to approve the items on the Consent Agenda as presented. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Kopp, to approve the items on the Consent Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSL Y. CONSENT AGENDA Approval of Minutes The Commissioners approved the minutes of the Regular meeting and Board of Equalization and Review meeting held on April 18, 2006, as presented by the Clerk to the Board. Adoption of Resolution Requesting NCDOT to Add Linden Ridge Road, Delham Court, Breeland Court, Talamore Court, Alder Ridge Road, Heddingham Lane and Pleasant Dale Drive in the Linden Ridge Subdivision to the State Highway System The Commissioners adopted a resolution requesting NCDOT to add Linden Ridge Road, Delham Court, Breeland Court, Talamore Court, Alder Ridge Road, Heddingham Lane and Pleasant Dale Drive in the Linden Ridge Subdivision (Division File No.: 1082-N) to the State Highway System. A copy of the resolution is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 2.1. Acceptance of Report from New Hanover County Schools The Commissioners accepted the report of the New Hanover County Schools that was approved by the Board of Education on April 3, 2006. The budget amendment reduces the Board of Education bond carry-over from FY 04-05 to FY 05-06 in the amount of $24,687, and transfers bond funds between Hoggard High School and Roland-Grise Middle School roof replacement projects in the amount of $100,000. Approval of Recommendations from the Juvenile Crime Prevention Council for Department of Juvenile Justice and Delinquency Prevention Funds The Commissioners approved the recommendations from the Juvenile Crime Prevention Council for Department of Juvenile Justice and Delinquency Prevention Funds for the fiscal year beginning July 1, 2006 through June 30, 2007. Recommended amounts are: Juvenile Day Treatment Center Teen Court Psychological Services (SEMH) Administration $203,045 $ 35,594 $202,486 $ 5,500 Acceptance of EEOC Contract Amendment/Extension Funds - Human Relations Department The Commissioners accepted EEOC contract amendment/extension funds in the amount of $29,820, authorized the County Manager to sign the grant document and approved the associated budget amendment #06- 0178. No County match is required. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 579 Budget Amendment # 06-0178 - Human Relations Adiustment Debit Credit EEOC Grant Contract Services Travel and Training $29,820 $28,620 $ 1,200 Authorization to Submit a Grant Application to the Gates Foundation and North Carolina State Library- Library The Commissioners authorized the Library to submit a "Gates Staying Connected" grant application to the Gates Foundation and North Carolina State Library in the amount of $10,081. If awarded, the funds will be used to replace the public access computers at the law library, Carolina Beach Library, Main Library, and one laptop for support of public access computers. No County match is required. Approval of Budget Amendments The Commissioners approved the following budget amendments: Budget Amendment # 06-0163 - Juvenile Day Treatment Center/GCC Adiustment Debit Credit Governor's Crime Commission Salaries and Wages Social Security Taxes Retirement - Local Government Medical Insurance Expense Long Term Disability $20,351 $15,945 $ 375 $ 720 $ 3,261 $ 50 Explanation: To adjust budget showing decrease in Governor's Crime Commission grant funding; the decrease is due to an employee not beginning until mid-year. Budget Amendment # 06-0181 - Department of Social Services Adiustment Debit Credit LINKS: LINKS Trust Funds $30,000 $30,000 Explanation: To budget additional Federal dollars to assist teenagers to become independent. REGULAR AGENDA ADOPTION OF PROCLAMATION DECLARING MAY 2006 AS FOSTER CARE MONTH IN NEW HANOVER COUNTY Chairman Greer reported that the Board is being requested to adopt the proclamation declaring May 2006, as Foster Care Month in New Hanover County. Vice-Chairman Caster read the proclamation into the record. Chairman Greer requested a motion for approval. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to adopt the proclamation declaring May 2006, as Foster Care Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the proclamation is hereby incorporated as part of the minutes and is contained in Exhibit Book XXX, Page 2.2. ADOPTION OF PROCLAMATION DECLARING MAY 2006 AS MENTAL HEALTH AWARENESS MONTH IN NEW HANOVER COUNTY Chairman Greer reported that the Board is being requested to adopt the proclamation declaring the month of May 2006, as Mental Health Awareness Month in New Hanover County. Commissioner Pritchett read the proclamation into the record and requested a motion for adoption. Motion: Commissioner Pritchett MOVED, SECONDED by Vice-Chairman Caster, to adopt the proclamation declaring May 2006, as Mental Health Awareness Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 580 A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 2.3. ADOPTION OF PROCLAMATION DECLARING THE MONTH OF MAY 2006 AS BICYCLE AWARENESS MONTH IN NEW HANOVER COUNTY Chairman Greer reported that the Board is being requested to adopt the proclamation declaring the month of May 2006, as Bicycle Awareness Month in New Hanover County. Vice-Chairman Caster read the proclamation into the record and requested a motion for adoption. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to adopt the proclamation declaring May 2006, as Bicycle Awareness Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the proclamation is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 2.4. PRESENTATION BY DISTRICT ATTORNEY BEN DAVID ON THE COMPUTERCOP PROGRAM District Attorney Ben David presented an overview of the ComputerCOP Program. ComputerCOP is an internet monitoring software program to regulate a child's safety while surfing or using the Internet. The program scans for potentially offensive images or keywords relating to drugs, pornography, violence, hate crimes and gambling and can be used to alert parents of potential internet predators. Through a collaborative effort between the District Attorney's office, New Hanover County Sheriff's Office and the Wilmington Police Department, funds have been raised to purchase over 2500 copies. The software program will be distributed by these organizations to different community groups such as PTA's. This program is a proactive step in protecting the children of New Hanover County from Internet predators and he expressed his appreciation to New Hanover County for its participation in the program. On behalf of the Board, Chairman Greer thanked District Attorney David. PRESENTATION OF PROJECT "HANDS ON WILMINGTON" Commissioner Pritchett reported that the first "Hands on Wilmington" project held on Saturday, April 22, 2006 was a success. The event was sponsored by the Chamber of Commerce and supported by a host of community organizations and volunteers. Commissioner Pritchett participated with over a hundred other volunteers in a tree planting event at Veterans Park but other projects around the County included painting, landscaping and repairs. A ceremony was held at the end of the day at Legion Stadium. APPROVAL OF INTERLOCAL AGREEMENT WITH THE CITY OF WILMINGTON REGARDING THE PARKS AND GREEN SPACE BOND REFERENDUM County Manager Bruce Shell reported that the Board is being requested to approve an Interlocal Agreement with the City of Wilmington for the Parks Bond Referendum, if approved by the voters on May 2, 2006. The Interlocal Agreement will govern how the County and the City of Wilmington will manage the Parks Bond money with regard to such issues as payment of debt service. The Interlocal Agreement outlines the following: . $35.5 million bond issue - County pays $18.05 million, City pays $17.45 million. . The County will issue the debt. The City will pay the County the City portion of debt service 49.15% of issuance; the County portion of debt service is 50.85%. . The City will manage $21.1 million of issuance seeking draw requests from the County during the purchase/construction period. . The City shall be responsible for maintenance of the City projects and joint projects. . The City shall own such property with joint City/County signage. . The County shall own the County projects. . Projects include $13.8 million County, $13.6 million City, $7.5 million joint County/City, and $.6 million for beach communities. Chairman Greer requested direction from the Board. Motion: Commissioner Pritchett MOVED, SECONDED by Vice-Chairman Caster, to approve the Interlocal Agreement with the City of Wilmington for the Parks Bond Referendum governing how the County and the City of Wilmington will manage the Parks Bond money, with regard to such issues as payment of debt service, if approved by voters on May 2, 2006. Upon vote, the MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING TO CONSIDER REVISIONS TO THE NEW HANOVER COUNTY CODE PERTAINING TO ANIMALS AND FOWLS Chairman Greer opened the Public Hearing and requested Animal Control Services Manager Dr. Jean McNeil to make the staff presentation. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 581 Dr. McNeil reported that the Board is being requested to consider revisions to the New Hanover County Code, Section Five: Animals & Fowl. Modifications and/or additions to the Code are necessary to enhance the overall effectiveness of staff in ensuring the care and safety of animals and residents. The revisions have been reviewed and approved by legal staff, the Animal Control Advisory Board, the New Hanover County Board of Health Executive Committee and the full Board of Health. Dr. McNeil reported that the definition of 'Severe Injury' is proposed to be changed from $100 in medical treatment to $250. Almost any injury from an animal will cause $100 in medical treatment given the current cost of medical care. A $250 requirement would be more in line with what would actually be an injury sufficient to warrant deeming a dog dangerous. Chairman Greer asked if anyone from the public wished to speak on the request. Hearing no comments, Chairman Greer closed the Public Hearing. After brief discussion, Chairman Greer requested a motion from the Board to approve the definition of 'severe injury' revision from $100 in medical treatment to $250. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to approve the ordinance revision in the New Hanover County Code, Section 5-61: Animals & Fowls - definition of 'severe injury' changed from $100 in medical treatment to $250. Upon vote, the MOTION CARRIED UNANIMOUSLY. Dr. McNeil reported that the proposed revision contains a spay/neuter requirement for dogs that have been deemed dangerous or potentially dangerous. This would only apply to dogs which have already been deemed dangerous and have violated the terms resulting from having been deemed dangerous. Chairman Greer asked if anyone from the public wished to speak on the request. Hearing no comments, Chairman Greer closed the Public Hearing. After brief discussion, Chairman Greer requested a motion from the Board to approve a spay/neuter requirement for dogs that have been deemed dangerous or potentially dangerous. Motion: Commissioner Pritchett MOVED, SECONDED by Vice-Chairman Caster, to approve the ordinance revision in the New Hanover County Code, Section 5:65: Animals & Fowls - spay/neuter requirement for dogs that have been deemed dangerous or potentially dangerous. Upon vote, the MOTION CARRIED UNANIMOUSL Y. Dr. McNeil reported that the proposed revision contains the creation of a specific kennel size requirement to ensure humanely sized kennels for dogs. Chairman Greer asked if anyone from the public wished to speak on the request. Hearing no comments, Chairman Greer closed the Public Hearing. After brief discussion, Chairman Greer requested a motion from the Board to approve the creation of a specific kennel size requirement. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to approve the ordinance revision in the New Hanover County Code, Section 5-4: Animals & Fowls - the creation of a specific kennel size requirement. Upon vote, the MOTION CARRIED UNANIMOUSLY. Dr. McNeil reported that the proposed revision replaces voice control with an actual leash law for dogs in County areas due to the urbanization of the County. Chairman Greer asked if anyone from the public wished to speak on the request. Paul Boney stated that the leash law will be a great help and requested the Board approve the ordinance reVISIOn. Ann Bowman, on behalf of seventeen homeowners associations located in the unincorporated area of the County, requested that the Board approve the ordinance revision. Karen Hackney stated that she is opposed to the ordinance revision and that the current ordinance is sufficient. She requested the Board increase the Animal Control Department budget to allow them to oversee more efficiently the current ordinances. Quinton Cooke stated that he is opposed to the ordinance and did not see the need for a revision. He suggested that dogs with an American Kennel Club certification be allowed exception from the leash law. Kim Freeman stated her concern that the revised ordinance would prohibit her dogs from running free at Freeman Park in Carolina Beach. She requested the Board set aside parks funds for a dog park. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 582 Patrice Kaizar stated that the American Kennel Club training was designed for dogs on a leash. Dr. Robert Wheaton, a veterinary and a member of the Board of Health, stated the need for the leash law and requested the Board approve the revision to the ordinance. Hearing no further comments, Chairman Greer closed the Public Hearing. After brief discussion, Chairman Greer requested a motion from the Board to enact a leash law for dogs in the unincorporated County. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Kopp, to approve the ordinance revision in the New Hanover County Code, Section 5-4: Animals & Fowls - to enact a leash law for dogs in the unincorporated County. Upon vote, the MOTION CARRIED UNANIMOUSLY. Dr. McNeil reported that the proposed revision contains the addition of a spay/neuter requirement for all agencies offering animals for adoption in New Hanover County. This requirement would address entities adopting out animals without having them spayed or neutered first. Chairman Greer asked if anyone from the public wished to speak on the request. Jeannie Leonard, Adopt an Angel organization, stated that she endorses the ordinance reVISIOn and requested the Board's approval. Jane O'Brien, Friends of Feline organization, stated that she endorses the ordinance and requested the Board's approval. Jill Jones, Adopt an Angel organization, stated that she endorses the ordinance revision and requested the Board's approval. Hearing no further comments, Chairman Greer closed the Public Hearing. After brief discussion, Chairman Greer requested a motion from the Board to approve adding a spay/neuter requirement for all agencies offering animals for adoption in New Hanover County. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to approve the ordinance revision in the New Hanover County Code, Section 5-27: Animals & Fowls - adding a spay/neuter requirement for all agencies offering animals for adoption in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of the Ordinance is hereby incorporated as a part of the minutes and is contained in Exhibit Book XXX, Page 2.5. Dr. McNeil reported that the proposed revision contains the addition of confiscation of pets whose owners are indisposed or who have been left in dire circumstances. The owner would be able to retrieve their animal from Animal Control Services after paying a $100 citation and any boarding fees. Chairman Greer asked if anyone from the public wished to speak on the request. Hearing no comments, Chairman Greer closed the Public Hearing. After brief discussion concerning potential liability issues, Chairman Greer requested a motion from the Board. Motion: Commissioner Pritchett MOVED, SECONDED by Commissioner Kopp, to table the ordinance revision allowing for confiscation of pets whose owners are indisposed or who have been left in dire circumstances to allow additional time for legal review. Upon vote, the MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING TO CONSIDER A REQUEST BY BETHANY PRESBYTERIAN CHURCH TO REZONE APPROXIMATELY .44 ACRE OF PROPERTY FROM R-20 RESIDENTIAL DISTRICT TO 0&1 OFFICE AND INSTITUTIONAL DISTRICT LOCATED AT 2311 CASTLE HAYNE ROAD (Z-832, 04/06) Chairman Greer opened the Public Hearing and requested Planner Sam Burgess to make the presentation. Planner Burgess reported that Bethany Presbyterian Church is requesting to rezone approximately .44 acre of property from R-20 Residential District to 0&1 Office and Institutional District located at 2311 Castle Hayne Road. The subject property is located approximately Y2 mile south of the intersection of North Kerr and Castle Hayne Road. The church acquired a large tract of land just north of the sanctuary that is currently zoned 0&1 Office and Institutional. The church then acquired the subject property, which is directly west of the 0&1 tract, with the zoning of R-20. The church now desires that both properties have the 0&1 zoning. The property to the east, NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 583 across Castle Hayne Road, is also zoned 0&1 as is the property directly north. The property directly south, which contains the church, is zoned R-20. The Planning Board voted 7 to 0 to recommend approval. Staff recommends approval which will eliminate the split zoning on this tract of land. The 0&1 zoning provides for a transition of land uses between residential and heavier commercial land uses. Chairman Greer asked if anyone from the public wished to speak on the request. Hearing no comments, Chairman Greer closed the Public Hearing and asked for direction from the Board. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Pritchett, to approve the request by Bethany Presbyterian Church to rezone approximately .44 acre of property from R-20 Residential District to 0&1 Office and Institutional District located at 2311 Castle Hayne Road. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA lOA OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON JULY 1,1974, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Section lOA, Page 27. BREAK Chairman Greer called for a break at 6:55 p.m. until 7:00 p.m. Chairman Greer reported that Agenda Item 8.7 - Public Hearing - Special Use Permit - Request by David Ward concerning validity of original Special Use Permit issued at 1512 Burnett Road has been withdrawn by the Petitioner. PUBLIC HEARING TO CONSIDER A REQUEST BY JAMES MCINTOSH TO REZONE APPROXIMATELY .38 ACRE OF PROPERTY FROM R-15 RESIDENTIAL DISTRICT TO B-2 HIGHWAY BUSINESS DISTRICT LOCATED AT 4007 HOLLY SHELTER ROAD (Z-833, 04/06) Chairman Greer opened the Public Hearing and requested Planner Sam Burgess to make the presentation. Planner Burgess reported that James McIntosh is requesting to rezone approximately .38 acre of property from R-15 Residential District to B-2 Highway Business District located at 4007 Holly Shelter Road. The subject property is located east of the intersection of Castle Hayne Road and Holly Shelter Road and has a split zoning of B- 2 on the west portion and R-15 on the east portion. The Petitioner is requesting to add approximately 20,000 square feet of his property to the B-2 Highway Business District from the R-15 Residential District. The Planning Board voted 7 to 0 to recommend, including the adjacent road right-of-way. Staff recommends approval. Chairman Greer asked if the Petitioner wished to speak on the request. The Petitioner, James McIntosh, spoke on the need for the rezoning and requested approval. Chairman Greer asked if anyone from the public wished to speak in opposition to the request. There being no further comments, Chairman Greer closed the Public Hearing and asked for direction from the Board. Motion: Commissioner Kopp MOVED, SECONDED by Vice-Chairman Caster, to approve the request by James McIntosh to rezone approximately .5 acre of property from R-15 Residential District to B-2 Highway Business District located at 4007 Holly Shelter Road. Upon vote, the MOTION CARRIED UNANIMOUSLY. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF THE CASTLE HAYNE AREA OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON JULY 1, 1985, is hereby incorporated as a part of the minutes and is contained in Zoning Book II, Castle Hayne Section, Page 24.5. PUBLIC HEARING TO CONSIDER A REQUEST BY CINDEE WOLF WITH WITHERS AND RAVENEL ON BEHALF OF L&D CONTRACTING, INC. TO REZONE APPROXIMATELY 3.99 ACRES OF PROPERTY FROM R-15 RESIDENTIAL DISTRICT TO CD B-1 CONDITIONAL USE NEIGHBORHOOD BUSINESS DISTRICT LOCATED AT 6215 CAROLINA BEACH ROAD (Z-837, 04/06) Chairman Greer opened the Public Hearing and announced that the Special Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Dave Weaver Sam Burgess Chris O'Keefe NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 584 Ann Hines Cindee Wolf Donnie King, Jr. Planner Sam Burgess reported that Cindee Wolf with Withers and Ravenel, on behalf of L&D Contracting, Inc., are requesting to rezone approximately 3.99 acres of property from R-15 Residential to CD B-1 Conditional Use Neighborhood Business District Located at 6215 Carolina Beach Road. The property is located approximately one mile south from the intersection of Sanders Road and Carolina Beach Road. Properties to the north, south, west and east are zoned R-15 Residential. Properties within 1f4 mile of the subject property are zoned B-1 CD and B-2 CD. The subject property has operated as a wholesale nursery for several years. A Special Use Permit was granted in 1979 for a gift shop in the front corner. An attempt to rezone the property from R-15 to B-2 occurred in January of 2000. The applicant, Steven Coats, requested the item be continued and it was never revisited by the Planning Board. The Petitioner recently purchased the nursery, which has several zoning and building code violations that can be corrected with this zoning change. The Planning Board voted 7 to 0 to recommend approval with recommendation that the district be extended approximately 600 feet east of the property line located at Carolina Beach Road with the condition that the applicant must meet all the zoning requirements for New Hanover County and correct any current violations as well as remedy any drainage deficiencies. Staff recommends that the front 400 feet be rezoned to B-1 CD Neighborhood Business Conditional Use to satisfy the two acre minimum for a B-1 District while still allowing the nursery and growing area in the rear portion of the properties with the condition that the applicant must meet all of the zoning requirements for New Hanover County and correct any current violations. Chairman Greer asked if the Petitioner would like to speak on the request. Cindee Wolf, the Petitioner, presented the project and requested approval, stating that they agree with findings of facts that were submitted. Chairman Greer asked if anyone would like to speak in opposition to the request. Hearing no one, Chairman Greer closed the Public Hearing and asked for direction from the Board. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Kopp, to approve the request by Cindee Wolf with Withers and Ravenel, on behalf of L&D Contracting, Inc., to rezone approximately 3.99 acres of property from R-15 Residential to CD B-1 Conditional Use Neighborhood Business District Located at 6215 Carolina Beach Road. Upon vote, the MOTION CARRIED UNANIMOUSL Y. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 4 OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON APRIL 7, 1972, is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 4, Page 74. Motion: Commissioner Kopp MOVED, SECONDED by Vice-Chairman Caster, to grant a Special Use Permit to Cindee Wolf with Withers and Ravenel, on behalf of L&D Contracting, Inc., to locate a retail nursery, garden shop, florist and gift shop based on the evidence presented and the findings of facts concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County with the following condition that the applicant must meet all of the zoning requirements for New Hanover County and correct any current violations. Upon vote, the MOTION CARRIED UNANIMOUSLY. The following findings off acts were submitted in the written back-up: 1. The Board must find that the use will not materially endanger the public health or safety where proposed and developed according to the plan as submitted and approved. A. The property currently has a well and septic tank. B. All of the property is located outside a 100-year flood area. C. Access to the property is from US 421 Carolina Beach Road D. Fire Service is available from the Myrtle Grove VFD 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. A retail nursery is a permitted use-by-right in a B-1 Neighborhood Zoning District. B. The site plan shows the street yard, but not the necessary amount of plant material required, which is 13 three-inch caliper shade trees and 78 twelve-inch shrubs. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 585 C. Parking requirements are met in the site plan submitted. D. The site plan does not show the existing signage to determine compliance with the Zoning Ordinance. E. The existing structure meets the minimum setbacks, but the enclosed porch violates the front setback requirements. F. The site plan shows a fence along the property lines, but does not meet the buffer requirements for abutting residential districts. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. No evidence has been submitted that this project will decrease property values of commercial uses nearby. B. The nursery operated as a wholesale nursery for more than twenty years. 4. The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The 2005 Land Use Plan Update identifies this area as Transition, no additional structures are proposed. B. Several other B-1 CD zoning districts exist further south along Carolina Beach Road. A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 5.1. PUBLIC HEARING TO CONSIDER A REQUEST BY KENNETH A. SHANKLIN ON BEHALF OF MASON LANDING YACHT CLUB, LLC. TO REZONE APPROXIMATELY 11.46 ACRES OF PROPERTY FROM R-20S RESIDENTIAL DISTRICT TO CD R-15 CONDITIONAL USE RESIDENTIAL DISTRICT LOCATED AT 2029 TURNER NURSERY ROAD (Z-838, 04/06) Chairman Greer opened the Public Hearing and announced that the Special Use Permit process requires a quasi-judicial hearing; therefore, the Clerk to the Board must swear in any person wishing to testify. The following persons were sworn in: Dave Weaver Ken Shanklin Chris O'Keefe Matthew A. Nichols Cindee Wolf Thomas Reid Lauren Galleher Richard Donaldson Bruce Kirk Ann Donaldson Robert Parr Edward Avery Bates Mark Hargrove Haywood Newkirk Montell Irvin Bruce Shell Senior Planner Chris O'Keefe reported that Kenneth A. Shanklin, on behalf of Mason Landing Yacht Club, LLC., is requesting to rezone approximately 11.46 acres of property from R-20S Residential District to CD R-15 Conditional Use Residential District located at 2029 Turner Nursery Road. The property is located approximately 1f4 mile east from Middle Sound Loop Road. The current land use on the site is a commercial marina with all of the surrounding properties zoned R-20S. Properties on Middle Sound Loop Road in this general vicinity are zoned R-15 residential. The existing commercial marina operates under a revised Special Use Permit issued by New Hanover County in 1973. The zoning change can be consistent with the County's policies for growth and development provided the density is limited to 2.5 units per acre and the impervious coverage is limited to 25%. The Planning Board voted 6 to 1 to recommend approval with following conditions: . No overhead lighting on the marina facility. . The entrance sign must meet the current Zoning Ordinance requirements. Staff recommends approval with the following conditions: . The preservation of the current availability of public access to the Intracoastal Waterway. . The entrance sign must meet the current zoning regulations. . No overhead lighting in the marina. Chairman Greer asked if the Petitioner wished to speak on the request. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 586 Cindee Wolf, with Withers and Ravenel, presented an overview of the project stating that the proposed project is a performance residential development with twenty-five home sites with wet slips; with an additional thirty-five wet slips available. Parking will be underneath the houses to conserve impervious surface. The proposed plan will reduce the current impervious surface to a maximum of 25% which will benefit the community, neighborhood and environment and meets all technical standards of the Ordinance. Ken Shanklin, attorney on behalf of the Petitioner, presented a timeline of the zoning and the current use of the property. Matt Nichols, attorney on behalf of the Petitioner, reported on the meetings that were held with the neighbors which resulted in the revised plan. Mr. Nichols reported that the revised plan eliminated the dry stack storage component and is now exclusively a wet slip marina, single family residential community. The revised plan is a less intense use of the property with a scaled down commercial marina facility. There is a reduction in the impervious surface from 42% to 24.9%; elimination of approximately 11,000 square feet of existing concrete pier; reduction in traffic; an improved storm water management system, more harmonious with the surrounding area and consistent with the Land Use Plan. He entered into the record affidavits from Real Estate Appraiser Haywood Newkirk and Transportation Engineer Montell Irvin. Chairman Greer asked if anyone from the public wished to speak in opposition to the request. Robert Parr, resident of Middlesound Lookout, stated that he would like to see the zoning remain R-20S and felt that the project could work within the existing zoning. He stated his concern with traffic and environmental issues and requested the Board deny the request and keep the current zoning. Edward Avery Bates, Court appointed Trustee of the property located at 2041 Turner Nursery Road, stated that he is opposed to the rezoning request without the following conditions: 1) The site plan must be developed as presented; and 2) The developer must promise to use best management practices in the development of the project to protect the outstanding resources especially the coastal waters. Chairman Greer asked the Petitioner for rebuttal comments. Ken Shanklin, reported that performance residential development is not permitted in the R-20S zoning. The current use is commercial with substantial impervious surface and that the proposed project is a better option. He referenced a Memorandum of Law that states there is no deed, easement or map showing a dedication of any part of the Petitioner's property to the use of the public for a boat ramp. Montell Irvin, Transportation Engineer, reported that in his professional opinion, the proposed rezoning and special use permit will significantly reduce traffic in comparison to the traffic generated by the current commercial marina. Approximately twenty-five cars in the peak period are estimated to be generated by the proposed project. Richard Donaldson, resident on Atlantic Drive, stated that he is in favor of the proposed project and did not feel that the area was appropriate for a public boat ramp and requested the Board not make the boat ramp a condition of the permit. Chairman Greer asked the opposition for rebuttal comments. Robert Parr requested the Board deny the request and keep the current zoning which is better for traffic and the environment. Edward Avery Bates stated that he is opposed to a public boat ramp due to the increase in the impervious surface. There being no further comments, Chairman Greer closed the Public Hearing and asked for direction from the Board. Motion: Vice-Chairman Caster MOVED, SECONDED by Chairman Greer, to approve the request by Kenneth A. Shanklin, on behalf of Mason Landing Yacht Club, LLC., to rezone approximately 11.46 acres of property from R- 20S Residential District to CD R-15 Conditional Use Residential District located at 2029 Turner Nursery Road. Upon vote, the MOTION CARRIED 4 TO 1. Commissioner Pritchett voted in opposition. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 3 OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON MAY 18, 1970, is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 3, Page 10. Motion: Commissioner Kopp MOVED, SECONDED by Vice-Chairman Caster, to grant a Special Use Permit to Kenneth A. Shanklin, on behalf of Mason Landing Yacht Club, LLC., to locate twenty-five residential units based on the evidence presented and the findings off act concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use if NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 587 developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County with the condition that the entrance sign must meet the current zoning regulations. Upon vote, the MOTION CARRIED 4 TO 1. Commissioner Pritchett voted in opposition. The following findings off acts were submitted in the written back-up: 1. The Board must find that the use will not materially endanger the public health or safety where proposed and developed according to the plan as submitted and approved. A. The property has County sewer and private utility water. B. The property along the boat basin is in the 100-year floodplain. C. Access to the property is from Mason Landing Road via Middle Sound Loop Road. D. Fire service is available from the Ogden Fire Department. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The site plan shows twenty-five residential units, the maximum number allowed under Performance Residential in an R -15. B. The amount of recreational space is 2.7 acres. C. The amount of impervious surface is 24.9% D. The parking requirement is satisfied. E. No buffering is required. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. No evidence has been submitted that this project will decrease property values of commercial uses nearby. B. The land use on this property has been a commercial marina for 23 years within a Residential Zoning District. 4. The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The 2005 CAMA update identifies this area as Conservation and Watershed Resource Protection. B. Residential development at this density occurs frequently throughout Middle Sound. A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 5.2. PUBLIC HEARING TO CONSIDER A SPECIAL USE REQUEST BY KENNETH A. SHANKLIN ON BEHALF OF MASON LANDING YACHT CLUB, LLC. FOR A COMMERCIAL MARINA CONTAINING SIXTY WET BOAT SLIPS AT 2029 TURNER NURSERY ROAD (S-556, 04/06) (Z-837,04/06) Chairman Greer opened the Public Hearing and announced that the Special Use Permit before the Board is the second part of the previous request. The following persons were previously sworn in: Dave Weaver Ken Shanklin Chris O'Keefe Matthew A. Nichols Cindee Wolf Thomas Reid Lauren Galleher Richard Donaldson Bruce Kirk Ann Donaldson Robert Parr Edward Avery Bates Mark Hargrove Haywood Newkirk Montell Irvin Bruce Shell Senior Planner Chris O'Keefe reported that Kenneth Shanklin, on behalf of Mason Landing Yacht Club, LLC., is requesting a special use permit to locate a commercial marina containing sixty wet boat slips at 2029 Turner Nursery Road and referenced the contents of the previous hearing are on the record. The Planning Board voted 6 to 1 to recommend approval for a Special Use Permit with the following conditions: 1. No overhead lighting on the marina facility. 2. The entrance sign must meet the current Zoning Ordinance requirements. 3. The public boat access should be preserved. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 588 Senior Planner O'Keefe reported that Staff recommends allowing pedestrian and or canoe/kayak access with ten public parking spaces stating that this might better fit with the proposed project than a public boat ramp. Assistant County Manager Dave Weaver stated that due to the concerns of the neighbors on the impact of a public boat ramp, Staff suggests setting up parking spaces so boat trailers would not be allowed, limiting the use to canoes/kayaks, and the hours of operation to daylight hours only. There is a concern with the growing lack of public access to the water. Chairman Greer asked if the Petitioner wished to speak on the request. Ken Shanklin, attorney for the Petitioner, referenced the previous hearing presentation and the affidavits submitted. He reported that the proposed project cannot cut down on the impervious surface and also allow a public boat ramp. There has been no grant of easement or dedication to the public or any public right of way given by any of the property owners. If a public access boat ramp was required there would be liability issues on who would be responsible for the monitoring and management. Chairman Greer asked if anyone from the public wished to speak in opposition to the request. Robert Parr, resident of Middlesound Lookout, requested that the Board make the public boat access a condition of the permit, with no gas sales, restricted hours and ban alcoholic beverages and outdoor music. If the Board approves the proposed project, he requested the condition be included that the public will have access to the boat ramp before and after major storms. If this project is approved, then in the Middle Sound area the average person will not have any public water access. Assistant Attorney E. Holt Moore confirmed with Commissioner Pritchett that the Board cannot require a public boat ramp on private property. Mr. Shanklin reported that due to the concerns of the neighbors and limiting the impervious surface the boat ramp has been removed from the proposed project. The conditions of no gas sales or overhead spotlights and the signage will meet the current Zoning Ordinance requirements are acceptable to the Petitioner. There being no further comments, Chairman Greer closed the Public Hearing and asked for direction from the Board. Motion: Chairman Greer MOVED, SECONDED by Vice-Chairman Caster, to grant a Special Use Permit to Kenneth A. Shanklin, on behalf of Mason Landing Yacht Club, LLC., to locate sixty wet boat slips based on the evidence presented and the findings of fact concluding that: 1) the use will not materially endanger the public health or safety if located and developed according to the plan as submitted and approved; 2) the use meets all required conditions and specifications of the Zoning Ordinance; 3) the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and 4) the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County with the following conditions: 1) No gasoline sales allowed; 2) The entrance sign must meet the current zoning regulations; and 3) No overhead spotlights allowed in the marina area. Upon vote, the MOTION CARRIED 3 TO 2. Commissioner Davis and Commissioner Pritchett voted in opposition. The following findings off acts were submitted in the written back-up: 1. The Board must find that the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved. A. The property has County sewer and private utility water. B. The property along the boat basin is in the 100-year floodplain. C. Access to the property is from Mason Landing Road via Middle Sound Loop Road. D. Fire service is available from the Ogden Fire Department. E. The current commercial marina operates under Special Use Permit number 67, approved in 1973 and amended in 1999. 2. The Board must find that the use meets all required conditions and specifications of the Zoning Ordinance. A. The site plan shows sixty wet slips existing on the property. B. All lighting shall be contained on the site. C. No structures allowed at the end of the pier. D. The parking requirement for commercial marinas is satisfied. E. Buffering is required along all property lines abutting residential districts, and SUP #67 requires a buffer running along the southern property line extending to the Intracoastal Waterway. F. All corrective actions noted in the February 16, 2006 letter from the Zoning Department need to be completed. 3. The Board must find that the use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity. A. Similar type projects exist in other residential districts in Middle Sound and New Hanover County. B. Some commercial marinas and some community boating facilities have been previously permitted in the Middle Sound area. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 589 C. No evidence has been presented that the proposed use will injure the value of adjoining or abutting property values. 4. The Board must find that the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the plan of development for New Hanover County. A. The New Hanover County Comprehensive Plan classifies the site as Watershed Resource Protection and Conservation. The purpose of the Watershed Resource Protection class is to provide for the preservation and protection of important natural, historic, scenic, wildlife and recreational resources. Polices 3-18 & 19 encourage public access to our estuarine and public trust waters. B. Surrounding land uses include single-family housing. A copy of the Special Use Permit is hereby incorporated as part of the minutes and is contained in SUP Book IV, Page 5.3. BREAK Chairman Greer excused himself due to illness and called for a break at 8:33 p.m. until 8:43 p.m. PUBLIC HEARING TO CONSIDER A REQUEST BY CINDEE WOLF WITH WITHERS AND RAVENEL ON BEHALF OF DONALD AND RACHEL THORNING TO REZONE APPROXIMATELY .52 ACRE OF PROPERTY FROM R-15 RESIDENTIAL DISTRICT TO B-2 HIGHWAY BUSINESS DISTRICT LOCATED AT 5022 CAROLINA BEACH ROAD (Z-836, 04/06) Vice-Chairman Caster opened the Public Hearing and requested Senior Planner Chris O'Keefe to make the presentation. Senior Planner O'Keefe reported that Cindee Wolf with Withers and Ravenel, on behalf of Donald and Rachel Thorning, is requesting to rezone approximately .52 acre of property from R-15 Residential District to B-2 Highway Business District located at 5022 Carolina Beach Road with the remaining portion of the property remaining R -15 Residential. The property is located on the west side of Carolina Beach Road approximately % of a mile north of Monkey Junction. This area of Carolina Beach Road is transitioning to more urban land uses. Several types of zoning districts occur in this region including 0&1 Office and Institutional, B-2 CD Highway Business Conditional Use and 0&1 CD Office and Institutional Conditional Use. Staff recommends approval of the rezoning which is in keeping with the commercial services already established at the Silver Lake Road intersection. The Planning Board voted 7 to 0 to approve the request. Vice-Chairman Caster asked if the Petitioner wished to speak on the request. Kim Crisp, stated that he is in the process of purchasing the proposed property for his martial arts business and requested the Board approve the rezoning request. Vice-Chairman Caster asked if anyone from the public wished to speak in opposition to the request. There being no comments, Vice-Chairman Caster closed the Public Hearing and asked for direction from the Board. Motion: Vice-Chairman Caster MOVED, SECONDED by Commissioner Kopp, to approve the request by Cindee Wolf with Withers and Ravenel, on behalf of Donald and Rachel Thorning, to rezone approximately .52 acre of property from R-15 Residential District to B-2 Highway Business District located at 5022 Carolina Beach Road. Upon vote, the MOTION CARRIED 4 TO O. A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 4 OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED ON APRIL 7, 1972, is hereby incorporated as a part of the minutes and is contained in Zoning Book I, Section 4, Page 75. MEETING RECESSED TO HOLD A REGULAR MEETING OF THE NEW HANOVER COUNTY WATER AND SEWER DISTRICT Vice-Chairman Caster convened from Regular Session at 8:49 p.m. to hold a meeting of the New Hanover County Water and Sewer District. Vice-Chairman Caster reconvened to Regular Session at 9:00 p.m. NON-AGENDA ITEMS Vice-Chairman Caster announced that time had been reserved to allow the public to present an item that was not listed on the regular agenda. He requested all persons speaking to limit their remarks to three minutes.6 No comments were received. NEW HANOVER COUNTY BOARD OF COMMISSIONERS REGULAR MEETING, MAY 1,2006 BOOK 30 PAGE 590 ADJOURNMENT Motion: Commissioner Davis MOVED, SECONDED by Commissioner Pritchett, to adjourn the meeting. Upon vote, the MOTION CARRIED UNANIMOUSLY. There being no further business, Vice-Chairman Caster adjourned the meeting at 9:05 p.m. Respectfully submitted, Sheila L. Schult Clerk to the Board