2023-03-06 Regular Meeting
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 660
ASSEMBLY
The New Hanover County Board of Commissioners met March 6, 2023, at 4:00 p.m. in Regular Session in
the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina.
Members present: Chair Bill Rivenbark; Vice-Chair LeAnn Pierce; Commissioner Jonathan Barfield, Jr.;
Commissioner Deb Hays; and Commissioner Rob Zapple.
Staff present: County Manager Chris Coudriet; County Attorney Wanda M. Copley; and Clerk to the Board
Kymberleigh G. Crowell.
STATE OF THE COUNTY ADDRESS
Chair Rivenbark presented the annual State of the County Address.
A copy of the state of the county address is hereby incorporated as part of the minutes and is contained in
Exhibit Book XLIX, Page 5.1.
BREAK: Chair Rivenbark called for a break at 4:40 p.m. to 4:56 p.m.
INVOCATION AND PLEDGE OF ALLEGIANCE
Pastor Gayle Tabor, SALT Inclusive Methodist Community, provided the invocation and Commissioner
Barfield led the audience in the Pledge of Allegiance to the Flag.
APPROVAL OF CONSENT AGENDA
Chair Rivenbark requested a motion to approve the Consent Agenda as presented.
Motion: Commissioner Zapple MOVED, SECONDED by Commissioner Barfield to approve the items on the Consent
Agenda as presented. Upon vote, the MOTION CARRIED UNANIMOUSLY.
CONSENT AGENDA
Approval of Minutes – Governing Body
The Commissioners approved the minutes of the Agenda Review Meeting held on February 16, 2023,
Special Meeting and Closed Session held on February 17, 2023, and Regular Meeting held on February 20, 2023.
Adoption of State Road Resolution – Governing Body
The Commissioners adopted the North Carolina Department of Transportation (NCDOT) state road
resolution in support of adding Stoneybrook Road and Bedrock Court within the Stoneybrook Subdivision (Division
File No: 1295-N) to the state system.
A copy of resolution is hereby incorporated as part of the minutes and contained in Exhibit Book XLIX, Page
5.2.
First Reading: Approval of Solid Waste Franchise for T&T Disposal LLC – County Attorney
The Commissioners approved the first reading of the solid waste franchise agreement for T&T Disposal LLC.
A second reading is required.
Approval of January 2023 Tax Collection Reports – Tax
The Commissioners approved the January 2023 tax collection reports for New Hanover County, New
Hanover County Debt Service, and New Hanover County Fire District.
Copies of the tax collection reports are hereby incorporated as part of the minutes and contained in Exhibit
Book XLIX, Page 5.3.
Adoption of Budget Amendment – Finance
The Commissioners adopted budget amendment 23-053 budgeting $2,404,012 of excess sales tax for items
submitted as fiscal year 2024 enhancement requests to now be expended in fiscal year 2023. These requests relate
to items that the departments are currently in need of, and by purchasing them in the current fiscal year, these
expenditures will not need to be budgeted for fiscal year 2024. Several additional, similar items in the general
government and cultural and recreational functions are not included in the amendment, as they can be absorbed in
the current year budget. Those items total $362,853.
A copy of the budget amendment is hereby incorporated as part of the minutes and contained in Exhibit
Book XLIX, Page 5.4.
REGULAR ITEMS OF BUSINESS
CONSIDERATION AND ADOPTION OF NATIONAL NUTRITION MONTH PROCLAMATION
Commissioner Barfield read the proclamation into the record, recognizing March 2023 as National Nutrition
Month in New Hanover County.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 661
Hearing no further discussion, Chair Rivenbark asked for direction from the Board.
Motion: Commissioner Barfield MOVED, SECONDED by Commissioner Hays to adopt the proclamation recognizing
March 2023 as National Nutrition Month in New Hanover County. Upon vote, the MOTION CARRIED UNANIMOUSLY.
Public Health Director Jonathan Campbell and Health and Human Services (HHS) Nutrition Services
Supervisor Anne Wrenn expressed appreciation to the Board for adopting the proclamation.
A copy of the proclamation is hereby incorporated as part of the minutes and is contained in Exhibit Book
XLIX, Page 5.5.
CONSIDERATION AND ADOPTION OF RESOLUTION IN SUPPORT OF H.R. 524
Intergovernmental Affairs Manager Tim Buckland stated that Congressman David Rouzer has filed H.R. 524,
which would exempt beach nourishment projects that have used sand borrow sites inside the designated Coastal
Barrier Resource Act zones for at least 15 years from rules that do not allow federal funds to support those projects.
The Commissioners expressed appreciation to Congressman Rouzer and Mr. Buckland for the work being
done for beach nourishment projects.
Hearing no further discussion, Chair Rivenbark asked for direction from the Board.
Motion: Vice-Chair Pierce MOVED, SECONDED by Commissioner Hays to adopt the resolution in support of H.R. 524.
Upon vote, the MOTION CARRIED UNANIMOUSLY.
A copy of the resolution is hereby incorporated as part of the minutes and is contained in Exhibit Book XLIX,
Page 5.6.
PUBLIC HEARING AND APPROVAL OF A REZONING REQUEST (Z22-23) BY CINDEE WOLF WITH DESIGN SOLUTIONS,
APPLICANT, ON BEHALF OF 6844 BAYAT LAND, LLC, PROPERTY OWNER, TO REZONE TWO PARCELS TOTALING
APPROXIMATELY 3.83 ACRES OF LAND LOCATED AT 6830 AND 6844 CAROLINA BEACH ROAD FROM R-15,
RESIDENTIAL TO 2.00 ACRES OF (CZD) B-1, NEIGHBORHOOD BUSINESS FOR A CONVENIENCE STORE AND 1.83
ACRES TO (CZD) R-5, MODERATE-HIGH DENSITY RESIDENTIAL FOR 12 SINGLE-FAMILY ATTACHED DWELLINGS
Current Planner Zach Dickerson presented the rezoning request. As the application is for a conditional
rezoning, conditions can be applied to the request in agreement with the applicant. The subject property is located
on the western side of Carolina Beach Road. The surrounding areas to the north, west and south are primarily
residential, with the Old Cape Cod neighborhood to the south and to the east, on northbound Carolina Beach Road,
is a convenience store with fuel station. Convenience stores with fuel sales are permitted in R-15 with a special use
permit (SUP).
There is an existing vacant house on the subject site. The applicant proposes to construct a 6,000 square
foot convenience store with a 16 pump fueling station as well as 12 single family attached homes, arranged in
triplexes. The concept plan includes a bufferyard along the southern boundary that will consist of an eight-foot-high
screening fence with a pedestrian gate and sidewalk connection from Southern Exposure to the convenience store.
Access is proposed to the subject property from Carolina Beach Road which is a NCDOT maintained urban principal
arterial highway. It will be limited to a right-in/right-out movement on Carolina Beach Road with a 200-foot right
turn lane on southbound Carolina Beach Road, prescribed by the traffic impact analysis (TIA).
The proposed convenience store with fuel station would generate approximately 506 AM and 430 PM peak
hour trips, while the 12 single family attached dwelling units would generate six AM and seven PM peak hour trips.
Wilmington Metropolitan Planning Organization (WMPO) provided the trip numbers based on the Institute of
Transportation Engineers (ITE) trip generation manual and are not reduced for capture of pass-by traffic. A TIA was
completed for the proposed project and approved on January 12, 2023. Mr. Dickerson provided an overview of the
required TIA improvements:
Intersection of Carolina Beach Road and Myrtle Grove Road: provide a four section flashing yellow
arrow signal head to the northbound U-turn.
Extend the northbound U-turn lane from 100-feet of storage to 200-feet of storage.
Install a southbound right turn lane on Carolina Beach Road.
Intersection of Carolina Beach Road and Hill Valley Walk: install a traffic signal and provide necessary
coordination with the NC 421 and Myrtle Grove Road intersection.
There are several projects in the vicinity with approved TIAs as detailed in the staff report. There is a TIA underway
for a project immediately to the north, which has already held a community meeting. Mr. Dickerson provided an
overview of the area subdivisions under development noting that the proposed 12 single family home development
would generate an estimated total of three students.
Mr. Dickerson provided examples of what are typically seen in an R-15 development and a convenience
store with fuel station along with an example of attached single family dwellings. While the subject site is located
south of the Monkey Junction Growth Node, it is near another fuel station at the corner of Myrtle Grove Road, which
is more accessible to northbound traffic on Carolina Beach Road. The proposed mixed-use project would provide a
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 662
fuel station on southbound Carolina Beach Road in the B-1 portion, serving as a transition between the road corridor
and the existing single family housing development to the south and the proposed higher density single family
housing to the west.
The 2016 Comprehensive Land Use Plan (Comprehensive Plan) classifies the area as Community Mixed Use.
The project is generally consistent with the Comprehensive Plan’s recommendations for the Community Mixed Use
place type. The Planning Board considered the application at its February 2, 2023 meeting and voted (6-0) to
recommend approval of the proposed petition. The application was found to be consistent with the purposes and
intent of the Comprehensive Plan because it provides for the types of uses and residential densities for a Community
Mixed Use project. It was also found recommending approval was reasonable and in the public interest because the
project will provide housing and commercial services to those along the Carolina Beach Road corridor and nearby
residents. The recommended approval included the following six conditions for compatibility and connectivity with
nearby residential uses and site lighting:
1. A private access easement will be dedicated to establishing permanent access for the three properties
to the rear of the development.
2. The bufferyard along the southern boundary will include an eight-foot-high screening fence with a
pedestrian gate and sidewalk connection from the terminus of Southern Exposure roadway to the
convenience store.
3. The owner will cancel the contract for the existing billboard on the site. The billboard will be removed
prior to issuance of Certificate of Occupancy.
4. Exterior lighting, including luminaries and security lights, shall be arranged, or shielded so as not to cast
illumination in an upward direction above an imaginary line extended from the light sources parallel to
the ground. Fixtures shall be numbered such that adequate levels of lighting are maintained, but that
light spillage and glare are not directed at adjacent property, neighboring areas, or motorists. Light
posts shall be no taller than twenty feet.
5. The applicant will continue the proposed turn lane south to the public utility access unless not allowed
by NCDOT.
6. The applicant will provide a sidewalk along the frontage of Carolina Beach Road and walks connecting
to the proposed homes.
Mr. Dickerson concluded the presentation stating that staff concurs with the Planning Board’s
recommendation based on the guidance of the Comprehensive Plan, the compatibility with density and uses
recommended for the Community Mixed Use place type, and the types of transitional uses recommended along
major road corridors such as this one. The project would be subject to Technical Review Committee (TRC) and zoning
compliance review processes to ensure full compliance with all ordinance requirements.
In response to Board questions, Mr. Dickerson stated that the first four conditions were suggested by the
applicant and the last two were recommended during the Planning Board meeting with applicant agreement. The
U-turn is not new and will be an extension of the northbound Carolina Beach Road U-turn lane at the intersection of
Myrtle Grove and Carolina Beach Roads. The existing U-turn lane just to the south of the development will also be
used. The Planning Board did not discuss the ability of people heading north to cut across three lanes of traffic that
is moving at a minimum of 55 miles per hour (mph). He further confirmed that NCDOT has approved a second traffic
signal installation for the U-turn at the intersection of Carolina Beach Road and Hill Valley Walk to the south.
Chair Rivenbark thanked Mr. Dickerson for the presentation and invited the applicant to make remarks.
Cindee Wolf with Design Solutions, representing the applicant and property owner Bayat Land, LLC, stated
the Community Mixed Use place type promotes development of residential communities with more density and
retail services to address incoming residents. A convenience store retail business with a primary emphasis on
providing the public with a convenient location to quickly purchase a wide array of consumable products,
predominantly food and vehicle fuel will serve a unique population of customers that either live in the immediate
area who can walk to the store or driving to and from other activities. Most customers are either the regulars who
rely on their store due fuel preference and sometimes for grab and go staples, or neighbors who come to the store
because its close by or walkable, or last minute shoppers who want a specific item. All fit into the County’s strategies
for the Community Mixed Use place type. There is currently no convenience store on the western side of Carolina
Beach Road. Anyone traveling south would have to make a turn at the light or make U-turns and then get back over
to go back south again, both of which contribute to the deterioration of level of service along the roadways. With
the land behind the proposed convenience store, a transitional buffer was built-in which has always been widely
accepted where there is a busy highway with business uses abutting the residential behind it. She and her client are
committed to installing sidewalks along the frontage of Carolina Beach Road and interconnecting all the internal
uses with sidewalks. A bufferyard with a screening fence will be installed along the common boundary of the Old
Cape Cod subdivision for visual and physical separation of the project. A pedestrian gate will be installed in the buffer
fencing along the southern boundary to ease access to the services. Similarly, fenced-in planted buffers will be
installed along the rear and north sides of the project to mitigate any impact to the residential properties. Ms. Wolf
provided an overview of the locations of significant trees being designated for preservation. Although there were
originally ponds shown for stormwater management, the decision has been made to use the more costly
underground stormwater infiltration system to address runoff but specifically for tree preservation. Soil testing has
been done for the seasonal groundwater depth and infiltration capacity in preparation for the underground
infiltration system with excellent results to support the premise that said method will work.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 663
The project required a TIA with the final report being accepted, reviewed, and approved. The TIA suggested
that 60% of the users will be traveling from the north based upon the ease of turning right into the proposed
development and then continuing south. Also, with the recommended improvements in place, the proposed site is
not expected to have a detrimental effect on transportation capacity and mobility of the study area. Levels of
services at the turning points either remain consistent or in a couple cases improve. There is a narrow roadway along
the southern boundary of the subject site. When Old Cape Cod was developed Southern Exposure, which is a public
road right of way maintained by NCDOT, was stubbed into the subject site for the future extension and
interconnectivity. However, there is a historic easement that was deeded to Carolina Power & Light (now Duke
Energy Progress) across two lots. It is believed that the drive was never intended to traverse into Old Cape Cod and
has historically been used by residents. During the community meeting, Ms. Wolf proposed making it into an actual
road with the right of way coming off the subject site so that Southern Exposure would stub into a road and access
would be given to properties that are landlocked at the back. The proposal was received with adamant opposition
from the Old Cape Cod residents. While there is still an issue of the driveway along the private access easement, all
opportunities have been explored for the subject site’s driveway. It cannot be installed any further north as NCDOT
wanted more separation between the signalized intersection and the driveway and there is a desire to preserve the
trees. As such, the driveway is placed in a position that is beyond the turnouts as required by NCDOT. The right turn
lane will be extended all the way down so that there is safe and adequate circulation for those who still use that
driveway. The proposed plan provides for all the items worked through with staff, neighbors, and NCDOT. It will also
go through a detailed driveway permit application as part of the permitting process. There are also several
undocumented encroachments of drives and a pavement encroachment to the rear of the three landlocked lots. The
property owners have been contacted to discuss that a recorded access easement would be provided that would
remedy the current pavement encroachment issue on the landlocked conditions of the three properties.
Ms. Wolf concluded the applicant presentation stating that all improvements that are needed based on the
TIA recommendations are the responsibility of the developer. It is felt that approval of the request is reasonable and
in the public interest and the Comprehensive Plan promotes this type of development. The proposed plan will
provide a service that is lacking and is compatible with the tracts along Carolina Beach Road while improving the
form and function of an underutilized site and maximizing land use efficiency. It is an excellent opportunity for good
economic development and increased tax base.
In response to Board questions, Don Bennett with Davenport, stated that he is not a roadway person, but
the improvement costs paid by a developer would be approximately $800 to $1,000 per foot for turn lane
investments. Traffic signals for the type that are required on the southern end of the proposed project would run
between $181,000 to $190,000 and the minor revision to the traffic signal at Carolina Beach Road and Myrtle Grove
Road would probably be in the $30,000 to $40,000 range.
In response to Board questions, Ms. Wolf confirmed that once the plan was completed, she had an arborist
assess the subject site. After the soil testing was complete, it was determined to be more worthwhile and
aesthetically attractive to preserve the trees and have the under pavement stormwater infiltration.
Discussion ensued regarding the private access easement and traffic conditions. Ms. Wolf confirmed that
there are two driveways next to each other. The access easement is somewhat improved over to Southern Exposure
and the rest is gravel. It is a 16-foot wide easement and her client has no control over that. It is part of the Old Cape
Cod platting. The dirt drive at the lower southwestern corner will be preserved by providing the documented
easement for the three landlocked properties. There is no other way to provide emergency vehicle access to said
properties other than for the easement to be installed by her client. As to traffic conditions, Mr. Bennett provided
an overview of how the required roadway improvements will operate to provide traffic controls not currently seen
near the subject site. He also provided an overview of the trip generation information noting that when looking at
straight trip generation, the subject site will generate approximately 5,000 trips a day with half entering and half
existing over the course of 24 hours. He confirmed that the turn lane going in will provide improvements to the
subject site and the private access easement. Ms. Wolf stated that the portion of the private access easement that
cuts behind properties would not be improved by her client as that would be offsite improvements on land owned
by Old Cape Cod or Duke Energy Progress. She also noted that the trips being discussed are not all new trips. It is
what is current along Carolina Beach Road.
In response to Board questions, County Attorney Copley stated that if the Board approved the rezoning
request the County does not have any liability. Ms. Wolf stated that if the private access easement is not established
to provide permanent access for the three properties to the rear of the development, which does not currently exist,
a certificate of occupancy will not be issued.
Discussion ensued regarding the TIA preparation and how there is another project before the Board during
this meeting that is not far from the current matter. Mr. Bennett stated that there are many projects that may be
surrounding the location generating traffic, but the standards of TIA preparation state that a developer will include
all approved developments as part of their background traffic analysis. That is because those developments have
been approved and the trips are quantified so the trips can be ported into the analysis. However, growth occurs
outside of the sphere of influence of any development and that is why there is a review of the historical growth
patterns on the arteries adjacent to the site. A short regression analysis is done to determine over the past six or
seven years what the average growth rate has been which is included within the scope of the TIA study. Mr. Bennett
stated that the other rezoning matter has not been included but there is an indirect assumption that there is a certain
amount of background growth occurring because of surrounding development that has not been quantified.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 664
Discussion ensued with Commissioners expressing concerns about the number of projects being planned
for Carolina Beach Road and the amount traffic being loaded onto said road. In response to Board questions,
Planning and Land Use Director Rebekah Roth stated that when a developer puts together a TIA, they are required
to consider all the development projects that have been approved, those approved by this Board and by-right
approved developments. The TIA considers some of that information and in this case, the TIA was worked on over
the course of several months and completed earlier this year. The project to be considered later in the meeting did
not require a TIA, so it did not necessarily consider the current matter. However, as part of the NCDOT driveway
permitting process, that developer must consider other development in the area as part of the site plan and what
will potentially have to be done in terms of roadway improvements. Even without a TIA, NCDOT can still require for
certain improvements to be installed to offset the impacts of the development in coordination with the other
projects. WMPO representative Scott James added that Mr. Bennett is correct that if there is not a TIA for an adjacent
property, but it is approved, it is considered real and will be built so those trips can be included as background traffic.
Forecasting future trips is challenging and there is a weekly review by his department of the trends. The background
growth percentage rate cited is a combined percentage of indicated data and what Planning staff suggests. If the
data does not appear fully accurate, staff has the discretion to state there is a busier road than the provided data
indicates and accordingly increase the background growth rate. That type of action has occurred in several
jurisdictions in the WMPO planning area. For this TIA, a one-percent background growth rate was included based
upon discussion and agreement by the committee. Given recent discussions held by this Board and others along with
recent requests for additional data collection, he would not be surprised if the one-percent growth rate is changed
upwards for new developments as the Carolina Beach Road corridor is busy for development.
In response to Board questions, Ms. Roth stated that staff can put together for the Board a comprehensive
map reflecting the potential development and what could be developed at current zoning along the Carolina Beach
Road corridor.
After a brief discussion about what the service the project will provide and the traffic impacts it will
potentially create on Carolina Beach Road, Chair Rivenbark announced that no signed up to speak in favor or in
opposition to the request, closed the public hearing and opened the floor to Board discussion.
Hearing no further discussion, Chair Rivenbark asked Ms. Wolf if based on the Board discussion and items
presented during the public hearing, whether she would like to withdraw the petition or proceed with the vote. Ms.
Wolf responded that she wanted to proceed with the vote. Chair Rivenbark asked for direction from the Board.
Motion: Commissioner Hays MOVED, SECONDED by Commissioner Barfield to approve the proposed rezoning. The
Board finds it to be consistent with the purposes and intent of the Comprehensive Plan because it provides for the
types of uses and residential densities for a Community Mixed Use place. The Board also finds approval of the
rezoning request is reasonable and in the public interest because the project will provide housing and commercial
services to those along the Carolina Beach Road corridor and nearby residents. The following proposed conditions
are included as part of the approval:
1. A private access easement will be dedicated to establishing permanent access for the three properties
to the rear of the development.
2. The bufferyard along the southern boundary will include an eight-foot-high screening fence with a
pedestrian gate and sidewalk connection from the terminus of Southern Exposure roadway to the
convenience store.
3. The owner will cancel the contract for the existing billboard on the site. The billboard will be removed
prior to issuance of Certificate of Occupancy.
4. Exterior lighting, including luminaries and security lights, shall be arranged, or shielded so as not to cast
illumination in an upward direction above an imaginary line extended from the light sources parallel to
the ground. Fixtures shall be numbered such that adequate levels of lighting are maintained, but that
light spillage and glare are not directed at adjacent property, neighboring areas, or motorists. Light
posts shall be no taller than twenty feet.
5. The applicant will continue the proposed turn lane south to the public utility access unless not allowed
by NCDOT.
6. The applicant will provide a sidewalk along the frontage of Carolina Beach Road and walks connecting
to the proposed homes.
Upon vote, the MOTION PASSED 4 TO 1, Commissioner Zapple dissented.
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 April 17, 1971 is hereby incorporated as part of the minutes
and is contained in Zoning Book I, Section 4, Page 122.
PUBLIC HEARING AND APPROVAL OF A REZONING REQUEST (Z23-02) BY SAMUEL FRANCK WITH WARD AND
SMITH P.A., APPLICANT, ON BEHALF OF SWARTVILLE, LLC, PROPERTY OWNERS, TO REZONE TWO UNADDRESSED
PARCELS (PARCEL IDS R02500-002-030-000 AND R02500-002-006-000) TOTALING APPROXIMATELY 104 ACRES OF
LAND LOCATED BETWEEN CASTLE HAYNE ROAD AND BLUE CLAY ROAD SOUTH OF I-140 FROM R-20, RESIDENTIAL
TO R-7, RESIDENTIAL MODERATE DENSITY
Current Planner Julian Griffee presented the rezoning request. As this is for a straight rezoning, any approval
would allow for all uses outlined for the requested district and could not include conditions. The original zoning was
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REGULAR MEETING, MARCH 6, 2023 PAGE 665
applied in the early 1970s, with B-2 and I-1 to the north across I-140, RMF-L to the east across the CSX railroad right-
of-way, R-10 to the south, and R-20 and R-10 to the west. The subject parcels are undeveloped and located between
Blue Clay Road and Castle Hayne Road, just south of I-140. The I-140 right of way and undeveloped land exists to the
north, the CSX Railway right of way and agricultural land to the east, undeveloped land to the south, and
undeveloped and single-family residential to the west. Mr. Griffee provided an overview of the current conditions
of the subject site and how each zoning district has different dimensional standards as well as how permitted uses
vary by district. He also provided an overview of the typical development within the R-20 zoning district typical
development within the R-7 district.
Access to the subject sites is to be provided by an access easement, connecting the sites to Castle Hayne
Road, an NCDOT minor arterial road, near the Rock Hill Road intersection. Compared with the maximum
development allowed under the current R-20 zoning, the requested district’s maximum allowed density would result
in 426 more dwelling units. The estimated trips generated from those units, if developed as single family detached,
result in an additional 255 AM peak hour trips and an additional 367 PM peak hour trips. TIAs are not required for
straight rezonings as a specific development proposal is required to thoroughly analyze potential trip generation.
There is one State Transportation Improvement Project (STIP) within the general vicinity of the proposal. That project
seeks to widen Castle Hayne Road from Division Drive to I-140, with right of way acquisition scheduled for fiscal year
2025 and construction to begin after 2029. There are two TIAs within the general vicinity, the details of which are
provided in the staff report. There are three subdivisions within the general area, with none of the units currently
built. Using the historic generation rates, an estimated 95 more students would be anticipated if developed at the
maximum density allowed within the R-7 district than if developed at the maximum density allowed under current
R-20 zoning. Developments associated with the proposed rezoning would likely not reach full build-out for over five
years. New Hanover County Schools staff would include this project if approved in future facility planning initiatives
to accommodate any resulting student growth.
The subject property is located along an access easement that connects only to Castle Hayne Road to the
west. It has no direct access from I-140 to the north and the CSX railroad right-of-way bounds the subject site to the
east. The subject site is also near the Employment Center, Commerce Zone, and Urban Mixed Use place types located
just north of I-140 at Castle Hayne Road. Recent developments within the general area have seen moderate densities
and more intense commercial districts, including the River Bluffs planned development, Bountiful Village, and
commercial rezonings near the Wrightsboro Commercial Node and Hermitage Road. The Comprehensive Plan
classifies the parcel within the General Residential place type, a designation intended to provide opportunities for
low to moderate density housing. The proposed R-7 district allows for a maximum of six dwelling units per acre,
which is generally consistent with the density range recommended for the General Residential place type. Along
with the preferred density range, the proposal promotes the uses recommended within the General Residential
place type and supports the Comprehensive Plan’s goal to provide for a range of housing types and opportunities
for households of different sizes and incomes.
The Planning Board considered the application during its February 2, 2023 meeting and recommended
approval (6 to 0) of the rezoning petition, finding the request consistent with the Comprehensive Plan, reasonable,
and in the public interest. Staff concurs with the Planning Board’s recommendation. Mr. Griffee concluded the staff
presentation stating that staff received no comments in opposition to the project. If approved, the project will be
subject to TRC and zoning compliance review processes to ensure full compliance with all ordinance requirements.
Chair Rivenbark thanked Mr. Griffee for the presentation and invited the applicant to make remarks.
Samuel Franck with Ward and Smith, P.A., representing Swartville, LLC, property owners, stated the site is
zoned R-20 as it was in 1972. R-20 was a default zoning established for much of the property in the County, whether
intended for residential use or not. It was a typical zoning designation for residential property at a time when there
was a dependence on lots large enough to include a well and a septic system which are factors that are no longer
applicable. The future land use plan describes the subject site as ideal for General Residential use. Of note, it has an
immediate proximity to both the desired mixed use land use and commercial general land use. The location serves
as a buffer and transition between the less dense residential uses to the west, the more intense residential uses to
the east, and the more significant commercial/business uses to the north. The County's population is expected to
continue growing in the coming years so there is a greater need for housing options in this part of the County. The
R-7 zoning allows for a greater variety of housing options, and the requested rezoning will better serve the public,
provide an opportunity for future housing needs, and the availability of essential utility services also helps support
the change from the R-20 to the R-7 zoning. R-7 zoning also provides an opportunity for a greater range of housing
options with smaller lots and greater density which allows for more efficient development of smaller and less
expensive homes helping to satisfy the real need in the community. The proposed plan is consistent with the future
land use map as the requested rezoning would allow for more of the desired uses set forth in the General Residential
place type, such as single family residential, low density multifamily, like commercial, civic, and recreational use. The
range of housing types permitted by the proposed rezoning would provide a diversity of housing options to support
the commercial and industrial developments anticipated within the nearby Employment Center and Urban Mixed
Use place types. Consistent with the staff and the Planning Board recommendations, the request is for the Board to
approve the rezoning to R-7, Residential Moderate Density.
In response to Board questions, Mr. Franck stated that the access easement is solid and 60-feet wide. It is
sufficient for both access and installation of future utilities as needed. There are fewer allowable uses permitted in
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REGULAR MEETING, MARCH 6, 2023 PAGE 666
R-7 than in R-20. Mr. Griffee provided an overview the allowed uses stating that R-7 is overwhelmingly geared
towards residential uses and for the most part all residential uses are permitted by-right within the zoning district.
Chair Rivenbark announced that no one signed up to speak in favor nor in opposition to the request, closed
the public hearing, and opened the floor to Board discussion. Commissioner Barfield commented on how in most
cases a private developer pays for the utility service improvements and/or road improvements.
Hearing no further discussion, Chair Rivenbark asked Mr. Franck if based on the Board discussion and items
presented during the public hearing, whether he would like to withdraw the petition or proceed with the vote. Mr.
Franck responded that he wanted to proceed with the vote. Chair Rivenbark asked for direction from the Board.
Motion: Commissioner Barfield MOVED, SECONDED by Commissioner Hays, to approve the proposed rezoning to
an R-7 district. The Board finds it to be consistent with the 2016 Comprehensive Plan because the project provides
for the density and range of housing options recommended in the General Residential place type. The Board also
finds approval of the project is reasonable and in the public interest because the proposal could accommodate
residential uses that could support the nearby Employment Center and Urban Mixed Use place types. Upon vote,
the MOTION CARRIED UNANIMOUSLY.
A copy of AN ORDINANCE OF THE COUNTY OF NEW HANOVER AMENDING THE ZONING MAP OF AREA 10A
OF NEW HANOVER COUNTY, NORTH CAROLINA, ADOPTED July 1, 1974 is hereby incorporated as part of the minutes
and is contained in Zoning Book II, Section 10A, Page 51.
PUBLIC HEARING AND APPROVAL OF A REZONING REQUEST (Z23-04) BY JAMES YOPP WITH RIVER ROAD
CONSTRUCTION, LLC, APPLICANT AND PROPERTY OWNER, TO REZONE TWO PARCELS TOTALING APPROXIMATELY
13.94 ACRES OF LAND LOCATED AT 6900 CAROLINA BEACH ROAD FROM R-15, RESIDENTIAL AND CZD O&I, OFFICE
AND INSTITUTIONAL TO CZD RMF-L, RESIDENTIAL MULTI-FAMILY – LOW DENSITY AND CZD B-2, REGIONAL
BUSINESS FOR A STORAGE FACILITY AND 126 MULTI-FAMILY UNITS
Current Planner Amy Doss presented the rezoning request. The application is for a conditional rezoning and
conditions can be applied to the request in agreement with the applicant. All parcels that abut the subject site are
zoned R-15, including the parcels across the Carolina Beach Road right-of-way to the east. However, there are
commercially zoned parcels nearby to the south along Carolina Beach Road. On June 16, 2014, the property was
rezoned to Conditional Office and Institutional (O&I) for boat and recreational vehicle (RV) storage with 74 berths
permitted outside. The site has not been developed for said use.
The property is bound to the east by Carolina Beach Road and to the north by Southern Charm Drive. There
is currently a single-family residence on the site. Ms. Doss provided an overview of the current conditions of the
subject site and the surrounding area. Following discussions at the Board of Commissioners March 2, 2023 agenda
review meeting, staff confirmed the proposed size of the mini storage structure with the applicant to be a 36,000
gross square foot mini storage structure and 126 multifamily units located in seven buildings as shown on the
concept plan. Amenities include a pool and walking trails through the passive recreation open space. Site access will
be primarily right-in/right-out on Carolina Beach Road with a secondary access from Southern Charm Drive. No gates
will be installed at the access points and all storage will be interior. The plan is subject to the design standards from
the 2020 Unified Development Ordinance (UDO). Under current zoning the development will generate
approximately 20 AM and 36 PM peak hour trips. Staff revised the trip generation numbers based on the gross
square footage of the mini storage facility proposed by the applicant which has resulted in a slight increase in
estimated trips. The proposed development of the site will generate approximately 65 AM and 80 PM peak hour
trips for an increase of approximately 44 trips at peak hour.
Ms. Doss provided an overview of the three projects in the vicinity with approved TIAs as reflected in the
staff report in the agenda packet. There is one TIA in review just north of the Bayat Land, LLC site. The proposed 126
multi-family home development would generate an estimated additional 20 students. The estimate is based on
student generation across the County. Apartment complexes generate fewer students than single family residences.
Ms. Doss provided an overview of representative comparable development of existing R-15, (CZD) O&I, and
comparable developments of interior mini storage structure and multi-family units. Adjacent property is mainly
single family residential and conservation and there is a business use in proximity along Carolina Beach Road. The
proposed mixed use project locates commercial use along Carolina Beach Road and low density multi-family housing
in between R-15 and performance R-15, providing a transitional type of infill development. Due to the location and
surrounding development patterns the property is less likely to be developed with low density housing.
The Comprehensive Plan classifies the area as Community Mixed Use and General Residential. The project
is generally consistent with the Comprehensive Plan’s recommendations for the Community Mixed Use place type,
promoting a mix of commercial and residential at moderate densities. The Planning Board considered the request
at its February 2, 2023 meeting and voted (6-0) to recommend approval of the proposed petition. The application
was found to be consistent with the purposes and intent of the Comprehensive Plan because it is in an area
designated as Community Mixed Use and General Residential and provides for the types of uses recommended by
these place types. It was also found that recommending approval of the rezoning request was reasonable and in the
public interest because the proposed residential and commercial uses are in line with the density and uses in the
surrounding area. Also included in the recommended approval are the following conditions:
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 667
1. Any RV and Boat storage must be located on the interior of the mini storage structure and may not be
visible from a public right-of-way.
2. The access easement from Southern Charm to Carolina Beach Road shall have a public access
easement.
3. The access easements from both Southern Charm Drive and Carolina Beach Road shall not be gated.
4. Multifamily structures shall be limited to three stories. The mini storage height will be limited to three
(3) stories or 50-feet.
5. The bufferyard between the new residential structures and the adjacent residential structures be no
less than 20 feet
Staff concurs with the Planning Board’s recommendation. Also, because of discussions ensuing from the Planning
Board meeting, an additional condition is recommended to clarify the size of the storage structure:
1. The mini storage structure will be limited to a 12,000 square foot maximum building footprint and a
36,000 gross square foot maximum.
Ms. Doss concluded the staff presentation stating that if approved, the project will be subject to TRC and
zoning compliance review processes to ensure full compliance with all ordinance requirements. Staff has received
two comments in opposition to the proposal, which have been provided to the Board. Staff has received several
phone calls from adjacent and nearby residents expressing concern over the traffic, density, and use of the proposal.
In response to Board questions, Ms. Doss stated the 36,000 gross square foot maximum would be for a
three-story building. Ms. Roth stated that boats and RVs will be stored on the bottom floor with the rest being
traditional mini storage. A dry stack boat storage facility is a different type of use and not allowed under what is
being considered for this matter. The mini storage facility use is what has been requested, which has a specific
definition in the UDO and provides for specific accessory uses that are allowed. A potential condition, with applicant
agreement, could be that dry stack boat storage is not allowed.
In response to Board questions, Ms. Roth stated there was a misunderstanding as to what was proposed in
terms of the gross square footage or footprint. What is being presented is what the applicant has requested to allow
for flexibility in the use in case the 6,000 square foot footprint evolves over time. There will be some limitations
based on the parking configuration and the drive aisles so it will not be allowed to expand exponentially. The original
application and concept plan did not specify the building footprint. It was included in some additional information
provided with the application. Discussion was held with the applicant after the Board’s March 2, 2023 agenda review
meeting and the applicant confirmed the request is for a mini storage structure that is limited to a 12,000 square
foot maximum building footprint. Parking for the mini storage facility is based on the square footage of the building,
which is also a limitation, but she will confirm the exact number with the Board after the applicant’s presentation.
Chair Rivenbark thanked Ms. Doss for the presentation and invited the applicant to make remarks.
James Yopp with River Road Construction, LLC, as the applicant and property owner, stated the current
Comprehensive Plan was developed for general direction for future growth in the County. It identifies areas
connecting to Carolina Beach Road as Community Mixed Use and Urban Mixed Use with increased densities of
residential development being appropriate when direct access to major thoroughfare roads is provided. It also serves
as a transition from busy corridors to less dense residential communities. The commercial uses such as B-2 are
appropriate and established along the Carolina Beach Road corridor. He provided an overview of the subject site
noting the existing buildings. Currently, most of the property is zoned O&I for boat storage and RV parking for 75
units. Part of the plan provides for seven buildings each containing 18 housing units with adequate parking and
amenity center and pool to service the community. The open space requirements for the development are 2.53
acres but what is being provided is over seven acres of open space in the plan. Additional buffering and setbacks
have been provided and agreed upon through the plan review process and with the Planning Board. Perimeter
fencing will be provided that will protect the adjacent property owners based upon feedback received during the
December community meeting. Road access is along Carolina Beach Road and connectivity to Southern Charm Drive.
It will improve emergency service access for both the Old Cape Cod community as well as the proposed community.
The project does not connect into McQuillan Drive. There is an opportunity to make the connection via the access
point but has not been provided due to the concerns of the McQuillan Drive residents about traffic impacts. Water
and sewer service can be provided through Aqua North Carolina, Inc. (Aqua) with improvements to the water and
sewer capacity for the surrounding areas. Stormwater will be permitted to be managed onsite. Traffic for the
proposed project does not exceed the 100 trips per hour. The WMPO concluded there is nothing required by the TIA
review committee. The total daily trips will be 883 and for the storage facility it will be nine daily trips. He provided
an overview of the NCDOT driveway plan showing the deceleration right lane and the turn into the property along
with the taper coming in just south of Southern Charm Drive. Efforts will be made to mitigate and save as many trees
as possible by adding the additional buffering with the units that will be placed on the northern part of the property.
Mr. Yopp further stated that the project provides for an increase in diversified housing with infill on an
underutilized tract of land and access to utilities and roadway improvements already exist. Growth should be
accommodated with a variety of housing types and price points. He provided an overview of similar housing
structures noting that the proposal provides an orderly transition of low density, single family residential detached,
and multifamily low density. There will be adequate parking and most of the buildings will be between two and three
bedroom units. For the enclosed storage facilities, the plan is to create the option of being able to have garage access
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 668
doors on the ground floor for additional large capacity space whether that would fit boats or RVs. He doubts that
would occur because of the parking restrictions. However, it was incorrectly shown as 6,000 square feet in the first
discussion and he wants to ensure it is clear that the not to exceed maximum footprint is 12,000 square feet. He is
looking at the possibility of doing three stories, which would be a total gross of 36,000 square feet. The storage
facility limits the noise disturbance to the surrounding neighborhoods and the impact to the surrounding area.
In response to Board questions, Mr. Yopp stated the units would be for rent. The trip counts for the storage
facility were regenerated by staff after clarification was provided. It is his understanding that the peak and total trips
for the storage facility are minimal at 18 daily trips. Jamar Johnson with WMPO stated that for 36,000 square feet of
mini storage, the total daily trips are 55 with three AM Peak and five PM Peak trips. It is not a traffic generator.
Ms. Roth stated that as to the earlier question about parking for the mini storage facility, the UDO requires
half of a parking space for every 1,000 square feet. For a maximum 36,000 gross square foot facility that would be
18 parking spaces per the UDO which is the number shown on the site plan. However, it could potentially be adjusted
as part of the TRC process if the applicant’s engineer shows that parking level is not needed.
In response to Board questions, Mr. Yopp stated that the seven acres of open space is a mix of wetlands
and building acreage. The passive recreation is set for the area to the west, which is mostly impacted by wetlands.
There is also some active recreation space inside the community. The total conservation space and open space
requirements are far exceeded by trying to keep more vegetation without impacting the surrounding environment.
He owns the remaining acreage to the west, but it is not part of the proposal and will remain at its current zoning of
R-15. The proposed plan is only for the area where the hash marks are located as shown on the site plan.
Chair Rivenbark announced that no signed up to speak in favor and one person signed up to speak in
opposition to the request. He invited the opposition speaker to make their remarks.
Lisa Cervero, resident of 346 McQuillan Drive, spoke in opposition to the request stating she represents the
120 signatories on a petition in her possession which urges the Board to deny the rezoning request. The reasons for
the denial request are existing excessive traffic on Carolina Beach Road, insufficient infrastructure for the increased
traffic, the rezoning request does not fit the already surrounding dense area, adding students to the school system
would only exacerbate the overcrowding issues, the 2014 hurricane evacuation study is outdated due to significant
growth since that time, a wetland survey hazard waste assessment and an endangered species assessment needs to
be completed by an impartial party from the state, and the develop will have a negative impact on the County.
Chair Rivenbark stated that the applicant and opposition speaker have five minutes each to provide rebuttal
remarks.
In applicant rebuttal, Mr. Yopp stated that the development and availability of utilities has allowed
expansion and increased densities in the subject area. The intention is to expand the infrastructure improvements
by increasing capacity for both sewer and water in the area. The density allowed in the R-15 zoning district does not
support the Comprehensive Plan for diversified and affordable housing. The current O&I zoning does not address
the housing gap in the community. Increased cost in infrastructure and interest rates requires increased density to
support smart sustainable growth and development as recommended in the Comprehensive Plan. The County has
not provided housing type options to meet the needs of families of all age groups. Retiring residents and workforce
residents have had limited options in the County to fit their housing needs. For example, Pleasure Island workers
could benefit by having homes closer to their place of employment.
In opposition rebuttal, Ms. Cervero stated she is not saying the developer cannot build on the subject site.
However, the surrounding area is all single family homes and rental apartment buildings do not fit the area. The
traffic along Carolina Beach Road is horrible at that end.
Chair Rivenbark closed the public hearing and opened the floor to Board discussion.
In response to Board questions, Mr. Yopp stated he has spoken with Aqua but cannot obtain a signed
agreement until he knows what density the project will provide to the area. Cape Fear Public Utility Authority
(CFPUA) does have water in the area, but serviceability of sewer is greatly restricted. Aqua does have sewer in the
area, and he will need to build a lift station for the site and then pump it to one of their gravity systems. There have
also been discussions with Aqua about future capacity and water source needs. It may be something he can provide
to help facilitate the surrounding area with water and sewer that could potentially gravity feed into the subject site.
In response to Board questions, Planning Board member Clark Hipp stated that the Planning Board has had
significant discussions regarding the traffic impacts on Carolina Beach Road. The Planning Board has tried to balance
based on the traffic information and has seen fit to recommend approval for some projects and denial for others.
For this specific request, based on the type of use it was deemed that the additional traffic created by the use type
could be mitigated or could be included in the traffic that runs along Carolina Beach Road.
In response to Board questions, Ms. Roth stated that Old Cape Cod is zoned R-15 which is seen a lot in the
unincorporated County with performance/clustered residential subdivisions. Even if there were smaller lots, the
overall density would be capped at 2.5 dwelling units per acre. The UDO allows for conventional subdivisions where
a developer must meet minimum lot size requirements and for clustered/performance residential projects that allow
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 669
for units to be located closer together on smaller lots. The percentage of open space required by the UDO is larger
for the performance subdivisions.
In response to Board questions, Mr. Hipp stated the Planning Board discussed that Carolina Beach Road,
Castle Hayne Road, as well as the northern and southern areas of the County are seeing a lot of applications for
redevelopment and increased density, much of which relates to the Comprehensive Plan. During the last Planning
Board meeting a request was made for additional or new updated traffic counts along Carolina Beach Road due to
the age of the traffic counts and the fact that the last one was done during the pandemic when there was less traffic.
There are multiple opportunities for a U-turn to be made on Carolina Beach Road which was part of the Planning
Board’s discussion. He cannot provide answers to how the traffic counts are done, but comments were made about
the need to perform the counts be during the summer season due to the significant increase in traffic at that time.
Board discussion ensued about the number of apartments being built particularly along Carolina Beach
Road near Echo Farms and how many include onsite storage facilities. It was noted that the County has a 10,000
housing unit shortage which is the amount that will be needed to sustain the future growth that will happen due to
the estimated 25,000 to 40,000 additional people expected to move into the County. The need for a diversity of
housing units is vitally important to have diverse neighborhoods that also provide a diversity of price points.
Concerns were expressed about the need to be careful about the density along the Carolina Beach Road area,
particularly when thinking about hurricane evacuations. Concerns were also expressed that the County cannot build
its way out of the housing shortage problem and how there is a need to protect the quality of life that residents have
come to expect, including finding a way to address the traffic issues. Further comments were made about the quality
of life being about more than traffic and how all the assets and resources are available in the County are what people
and businesses take into consideration when looking to relocate to the area.
Hearing no further discussion, Chair Rivenbark asked Mr. Yopp if based on the Board discussion and items
presented during the public hearing, whether he would like to withdraw the petition or proceed with the vote. Mr.
Yopp responded that he wanted to proceed with the vote. Chair Rivenbark asked for direction from the Board.
Motion: Commissioner Barfield MOVED, SECONDED by Commissioner Hays, to approve the proposed rezoning. The
Board finds it to be consistent with the purposes and intent of the Comprehensive Plan because it is in an area
designated as Community Mixed Use and General Residential and provides for the types of uses recommended by
these place types. The residential densities are in line with those recommended within these place types, and the
project will provide housing and commercial services to those along the Carolina Beach Road corridor and nearby
residents as recommended in the Comprehensive Plan. The Board also finds approving the rezoning request is
reasonable and in the public interest because the proposed residential and commercial uses are in line with the
density and uses in the surrounding area. The following proposed conditions are included as part of the approval:
1. Any RV and Boat storage must be located on the interior of the mini storage structure and may not be
visible from a public right-of-way.
2. The access easement from Southern Charm Drive to Carolina Beach Road shall have a public access
easement.
3. The access easements from both Southern Charm Drive and Carolina Beach Road shall not be gated.
4. Multi-family structures shall be limited to three (3) stories. The mini storage height will be limited to
three (3) stories or 50-feet.
5. The bufferyard between the new residential structures and the adjacent residential properties shall be
no less than 20-feet, and a fence shall be installed along the southern property boundary.
6. The mini storage structure will be limited to a 12,000 square foot maximum building footprint and a
36,000 gross square foot maximum.
Upon vote, the MOTION PASSED 3 TO 2, Vice-Chair Pierce and Commissioner Zapple dissented.
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 April 17, 1971 is hereby incorporated as part of the minutes
and is contained in Zoning Book I, Section 4, Page 123.
PUBLIC HEARING AND APPROVAL OF A REZONING REQUEST (Z23-05) BY FRANK CHAPMAN WITH DAVIE
CONSTRUCTION CO., APPLICANT, ON BEHALF OF MILTON TURNER SCHAEFFER, III, PROPERTY OWNER, TO REZONE
THE APPROXIMATELY 1.7 ACRE PARCEL LOCATED AT 4629 CAROLINA BEACH ROAD FROM (CZD) B-2, REGIONAL
BUSINESS TO A NEW (CZD) B-2 DISTRICT TO CONVERT AN EXISTING SINGLE-FAMILY HOME FOR OFFICE AND
VETERINARY SERVICES
Current Planner Julian Griffee presented the rezoning request. As the application is for a conditional
rezoning, conditions can be applied to the request in agreement with the applicant. The subject property, located
along Carolina Beach Road is surrounded by (CZD) B-2 to the north, R-15 across Carolina Beach Road, and R-5 to the
east. A portion of the site abuts Community Business zoning located within the City of Wilmington to the east.
Commercial mini storage is to the north, a civic organization across Carolina Beach Road, and a single family
residence and a multi-family development exist to the east.
The subject site and the adjacent .22-acre parcel to the south were originally part of the Carolina Dog Sports
development approved within Z21-20. Since then, the .22-acre parcel was rezoned to allow for a residential use. The
subject site remains zoned to allow for the development of approved uses as outlined within the Carolina Dog Sports
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 670
development. The uses are limited to indoor recreation facilities, retail sales, and general and animal grooming
services. The proposed plan outlines the vacant single family dwelling, associated parking, and driveway access from
Carolina Beach Road. No stormwater is depicted on the site plan as the impervious calculations are below the
threshold as required by County Engineering. However, there may be a drainage requirement which would be
identified during the TRC process. The applicant proposes to remove two well houses and an existing manufactured
home located behind the single family dwelling. The applicant also proposes to allow for the parcel to be used for
the three approved uses within the Carolina Dog Sports project of indoor recreation facilities, retail sales, general
and animal grooming services, and add the use of veterinary services.
Mr. Griffee provided an overview of the current conditions of the subject site and surrounding area. The
approved Carolina Dog Sports development was estimated to generate more trips than the subject proposal. Mr.
Griffee reviewed the estimated peak hour trips for the Carolina Dog Sports facility, figures for the 2,400 square foot
veterinary services use, and the trip generation figures for the other uses, if the development were to change
operations into one of those permitted uses. There is one TIA and one STIP within the general vicinity of the project
as reflected in the staff report. He also provided an overview of the nearby area subdivisions within the
unincorporated County currently under development, with none of the units having been constructed at this time.
The Fairfield Park development is still under construction within the City of Wilmington limits.
The subject site fronts Carolina Beach Road and is expected to be a right-in, right-out only access. The
proposed site plan reduces the overall square footage from what is currently approved by approximately 19,600
square feet. The proposed uses contribute to the mixture of uses already existing within the area. The proposal could
serve as a transitional use between the adjacent commercial mini storage facility and the residential uses. The
Comprehensive Plan classifies the area as Community Mixed Use, which recommends a mixture of uses that includes
low to moderate intensity retail and services that can support nearby neighborhoods. The location of subject site
between established residential uses and commercial and institutional establishments is where transitional
commercial uses could be appropriate. The proposal is in line with the uses recommended within the Community
Mixed Use place type. Staff found the request to be generally consistent with the Comprehensive Plan and in the
public interest. As such, staff recommends approval of the request with the applicant’s proposed condition.
The Planning Board considered the application at its February 2, 2023 meeting and voted to recommend (6
to 0) for the approval of the rezoning with the applicant’s proposed condition, finding the request consistent with
the Comprehensive Plan and reasonable and in the public interest. Staff concurs with the Planning Board’s
recommendation of approval with the applicant’s proposed condition of limiting the permitted uses to veterinary
services, indoor recreational facility, retail sales, and general and animal grooming services. Mr. Griffee concluded
the presentation stating that one comment was received in opposition pertaining to the project, which has been
provided to the Board. If approved, the project will be subject to the TRC and zoning compliance review processes
to ensure full compliance with all ordinance requirements.
Chair Rivenbark thanked Mr. Griffee for the presentation and invited the applicant to make remarks.
Frank Chapman with Davie Construction Co., applicant, representing Milton Turner Schaeffer, III, property
owner, stated the proposed plan is an adaptive reuse of the existing structure. The structure is approximately 2,500
square feet and will be modified and brought up to building code standards and the mobile home to the rear will be
removed from the site. The proposed plan is under the stormwater requirements, but any type of future
development will require some sort of onsite stormwater management. In the current survey there is enough
adequate parking for staff and for clients. It is located on the northbound side of the road and there will be minimal
traffic impacts.
Chair Rivenbark announced that no one signed up to speak in favor or in opposition to the request, closed
the public hearing, and opened the floor to Board discussion.
Hearing no further discussion, Chair Rivenbark asked Mr. Chapman if based on the Board discussion and
items presented during the public hearing, whether he would like to withdraw the petition or proceed with the vote.
Mr. Chapman responded that he wanted to proceed with the vote. Chair Rivenbark asked for direction from the
Board.
Motion: Commissioner Zapple MOVED, SECONDED by Vice-Chair Pierce to approve the proposed rezoning to a (CZD)
B-2 district. The Board finds it to be consistent with the purposes and intent of the Comprehensive Plan because the
project provides a type of use recommended in the Community Mixed Use place type. The Board also finds approval
of the rezoning request is reasonable and in the public interest because the proposal is located within an area that
possesses a mixture of uses and higher intensities. The proposal is similar in form and density to other nearby
projects and would serve as a benefit as it provides an appropriate transition between adjacent land uses. The
following proposed condition is included as part of the approval:
1. Permitted uses of the site are limited to Veterinary Services, Indoor Recreational Facility, Retail Sales,
General, and Animal Grooming Services.
Upon vote, the MOTION CARRIED UNANIMOUSLY.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 671
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 April 17, 1971 is hereby incorporated as part of the minutes
and is contained in Zoning Book I, Section 4, Page 124.
QUASI-JUDICIAL PUBLIC HEARING AND APPROVAL OF A SPECIAL USE PERMIT REQUEST (S22-03) BY THOMAS
JOHNSON, ATTORNEY ON BEHALF OF SKYWAY TOWERS, APPLICANT, ON BEHALF OF KENNETH AND ELOISE
PARKER, PROPERTY OWNERS, TO PLACE A 195 FOOT TALL, CONCEALED MONOPOLE WIRELESS COMMUNICATIONS
TOWER ON ONE UNADDRESSED PARCEL TOTALING APPROXIMATELY 4.98 ACRES OF LAND LOCATED ON
PLANTATION ROAD AT THE INTERSECTION OF PLANTATION ROAD AND MILITARY CUTOFF EXTENSION
Chair Rivenbark opened the public hearing and announced that the special use process requires a quasi-
judicial hearing and therefore, the clerk to the board must swear in any person wishing to testify. He requested all
persons who signed in to speak or who want to present testimony to step forward to be sworn in.
Robert Farrell Michael Berkowitz
Rebekah Roth Bradley Newman
Scott James Jonathan Gordon
Clark Hipp Gene Meadows
Thomas Johnson
Chair Rivenbark further stated that a presentation will be heard from staff, then the applicant group and
the opponent’s group will each be allowed fifteen minutes for presentations and an additional five minutes, if
necessary, for rebuttal. He asked Senior Planner Robert Farrell to start the presentation.
Senior Planner Robert Farrell stated that for an SUP request for a wireless support structure, also commonly
referred to as a wireless or cell tower, conditions may be applied to the request to ensure compliance with a required
conclusion. The site is located on an unaddressed parcel on Plantation Road adjacent to a ramp serving the new
Military Cutoff Extension which is currently under construction and was originally zoned R-15 in the 1970s. At the
time, the purpose of the district was to ensure housing densities remained lower due to the need for private wells
and septic systems. To the west is the Hanover Reserve planned development. Hanover Reserve was approved in
August 2021 and includes areas for residential and commercial development along Military Cutoff with an extension
of Murrayville Road that will be installed by the developer and submitted to NCDOT for maintenance. The proposed
uses include a mix of housing types at 7.5 dwelling units per acre as well as a mix of restaurant, retail, office, and
other general commercial uses.
Mr. Farrell provided an overview of the aerial photos of the subject site noting that the site is vacant, and
the surrounding area is wooded. He further stated that wireless support structures are allowed in the R-15 district
with an SUP. Support structures are also required to demonstrate compliance with use-specific standards which
include setbacks equal to the height of the tower, landscaping, fencing, and Federal Communication Commission
(FCC) and Federal Aviation Administration (FAA) compliance verification, among the other items. There are several
things local governments can regulate regarding wireless towers, but the FCC and North Carolina General Statutes
(NCGS) prohibit local governments from regulating or restricting towers based on radio frequency emissions.
The subject site has direct full access onto Plantation Road, a private unimproved road with future access
onto Military Cutoff immediately west of the site. As proposed, the tower is estimated to generate approximately
five trips per month for maintenance purposes. The concept plan shows the proposed location of the equipment
compound and tower, a driveway easement from Plantation Road, setbacks exceeding the proposed tower height,
and the location of existing environmental features including wetlands and a pond identified on site. The proposed
equipment compound is within a 10,000 square foot leased area which includes a 50-foot by 50-foot fenced
compound and a landscaped buffer surrounding the tower. The tower itself is proposed at 195-feet tall with a four-
foot lightning rod for a total height of 199-feet. The tower is designed to accommodate four wireless carriers and
will be employing concealment methods that will give the tower the appearance of a pine tree, which is commonly
found in the surrounding area. Concealment is required for towers in residential zoning districts unless waived by
the Board as a condition of approval.
There is one TIA in the area, the details of which are included in Board’s agenda packet. There is one
subdivision currently in development with all the lots remaining to be built. Regarding the Comprehensive Plan, the
site is in the Community Mixed Use place type, which focuses on small-scale, compact, mixed use development
patterns that serve all modes of travel and function as an attractor for county residents and visitors. The intent of
the place type is to provide community-level service nodes and transitions between lower density housing and higher
intensity development specifically along major highway corridors. While wireless support structures and other
infrastructure are common in contemporary land development patterns, the Comprehensive Plan does not
specifically address their location. However, the implementation guidelines of the Comprehensive Plan do aim to
support business success, workforce development, and economic prosperity. Wireless support structures when
placed to best serve the needs of surrounding residents, businesses, and institutional uses, can help to advance
those goals. The Board must come to the following four conclusions to issue the SUP, which must be based on
substantial evidence presented at this hearing:
1. The use will not materially endanger the public health or safety where proposed and developed
according to the plan as submitted and approved.
2. The use meets all required conditions and specifications of the Unified Development Ordinance.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 672
3. The use will not substantially injure the value of adjoining or abutting property or that the use is a
public necessity.
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
Comprehensive Land Use Plan for New Hanover County.
The findings of fact must be met with competent material and substantial evidence in the record or in testimony
during this hearing. Staff has provided preliminary findings addressing each conclusion based on information
provided to date, and the Board can modify, add, or otherwise amend these findings based on information provided
during the hearing. For conclusion #1, the preliminary staff findings generally address utilities, fire protection, access,
environmental features, and traffic. For conclusion #2, the findings address compliance with various UDO
requirements governing wireless support structures which include setbacks and compliance with FCC regulations,
signage, aesthetic impacts, landscaping, buffering, co-location, storage, and compliance with FAA regulations. For
conclusion #3, the findings address existing site conditions, land uses, and the impact analysis submitted by the
applicant that finds that the proposal will have no significant adverse impact on adjoining or abutting properties. For
conclusion #4, the findings address compatibility with the surrounding area and the Comprehensive Plan.
Commissioner Barfield asked if there were many 195-foot tall pine trees in the subject area. Mr. Farrell
responded not to his knowledge.
Chair Rivenbark thanked Mr. Farrell for the presentation and invited the applicant to make remarks.
Thomas Johnson, attorney with Williams Mullen, stated he was presenting on behalf of the applicant
Skyway Towers and property owners Kenneth and Eloise Parker and with him are Michael Berkowitz, a certified
appraiser and Brad Newman, the engineer of record for the project. He confirmed that it will be a tall pine tree, but
under the UDO must be a faux pine tree and must be tall enough to provide the coverage. The subject site is in a
rural part of the County where there is no coverage. The idea is to get some infrastructure out there just like the
Military Cutoff Extension to provide the necessary wireless infrastructure in the area. As shown earlier the site is at
the intersection of Plantation Road and Military Cutoff Extension, adjoining the interchange of the new road. He
provided an overview of the aerial where the site will be located off Plantation Road. T-Mobile will be the initial
carrier and he provided an overview of the current coverage, what the site will provide in terms of improved
coverage for T-Mobile, and the current T-Mobile sites. The idea is to provide necessary and excellent coverage so
there is dependable service in the event of an emergency and for those who want to use wireless as their internet
service to do so in a reliable manner and to also avoid dropped calls. While it is required to provide four different
location simulations, six location simulations were performed to give a broader view from the major thoroughfares
and then from any adjoining development that the UDO requested be done. He feels seven were done as one
simulation was a location off Plantation Road. Initially the desire was for a monopole, but the UDO does not allow
that in residential. The monopole must be concealed as a tree to get the needed height to get the coverage in that
area of the County. As shown from the earlier coverage maps, it must be tall enough to do that. He asked that the
application and supporting documentation be admitted into evidence. He and his clients concur with the staff
findings based upon the evidence that has been presented. He asked Mr. Berkowitz to briefly talk about impacts on
adjoining property values noting that he is a North Carolina certified appraiser. He stated that the project’s engineer
Bradley Newman is available for any questions regarding the engineered site plan.
Michael Berkowitz with MPB Real Estate, LLC, stated that he resides at 1100 Sundance Drive in Concord,
North Carolina and thanked the Board for the opportunity to speak. He stated that he performed an impact analysis
for the proposed tower. In his professional opinion based upon his findings through a quantitative and qualitative
analysis, the tower as proposed will not substantially injure the value of adjacent or abutting properties. The other
issue at hand is that the external factors of the increased infrastructure in the area, which is intended to alleviate
traffic as the primary focus of that area, would be determining the highest and best use of the properties in the area,
as well as the potential buyer. Right now, the best buyer for that property in that area would be a speculative
purchaser for future development based upon improving infrastructure, as seen as by the residential developments
to the southwest, the commercial corridor to the east, and the I-140 infrastructure improvements.
Thomas Johnson stated that he would summarize by going through the findings of fact. The proposal does
not have an impact on health and safety and improves health and safety by improving access to wireless coverage
in that area of the County if someone needs it because of an emergency and because of the need for broadband
coverage in the rural areas of the County. It meets the requirements, conditions, and specifications of the UDO.
Again, staff went through that the request meets the UDO requirements as outlined in the agenda packet. The Board
must find that it will not substantially injure the value of adjoining or abutting properties. Mr. Berkowitz spoke to
that as well as his report. On number four, the Board must find that the use as submitted will be in harmony with
the area in which it is to be located. By law and definition, it is in harmony if it is allowed as a special use in the
subject area unless there is any kind of significant rebuttal testimony. The staff has done a really good job of showing
how this project is in harmony. It is in harmony because it provides coverage as necessary to the community and it
is infrastructure for the community. Based upon that he asked the Board to approve the SUP.
Chair Rivenbark announced that no signed up to speak in favor and two people signed up to speak in
opposition to the request. He invited the opposition speakers to make their remarks.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 673
Jonathan Gordon, resident of 7319 Plantation Road, spoke in opposition to the request stating that he sent
an email with some graphics for the Board to see. Plantation Road was dedicated as a roadway for ingress and egress
all the way back in the 70s. If the Board looks at some of the graphic sites he submitted, the staff did detail Plantation
Road with an intersection in the Military Cutoff Extension. That is not correct. It intersects with the service road then
the service road intersects with the Military Cutoff Extension. Looking at Plantation Road, it is a dirt path that is 20-
feet wide. There is nothing underneath it that holds it. He can say this because he has lived there since 1999 and has
been taking care of the road since 1999. He has seen all the survey trucks that have come down as well as the studies
where they did their due diligence on the property. The added travel to this road injures it for homeowners like him.
He and his neighbors biggest concern is emergency vehicles. There has been a lot of discussion about safety. The cell
services are okay in there. Three times people have died in that area, because the first responders’ equipment could
not get through because the road is so impassable. It is very difficult. He has towed them out of there, graded the
road, and pulled people out of the ditches in the middle of the night. He is not against progress and does not think
any of the neighbors are against progress or growth here. He is certainly not. The concern is the applicant’s use of
the road. Just a month ago, it flooded over with the ditches flooding over top of the road, so a pickup truck would
destroy it. Then the ruts start becoming worse and worse and now he is concerned whether an ambulance or a fire
truck or something like that can get to his residence. He is concerned about the construction process. The tower is
going to be 200-feet tall and there will be tractor trailers, bulldozers, and excavators on the site. All those things are
heavy, and he would ask that if the Board grants the SUP that there is consideration in the permit for the applicant
to mitigate the impact on the community. He is part of the community on that road, and he would like to see a
condition applied to the permit that something like a geogrid be laid onto the surface with some rock and that rock
is then compressed in with a roller prior to the construction and once the construction is complete, so leaving it in a
condition that was better than when it started. He thanked the Board for the opportunity to speak.
Gene Meadows, resident of 609 Campbell Street, spoke in opposition to the request stating that he does
not live out there, but his sister and he own property out there. He has no problem with the tower, but he wants to
make sure he can access his property. His property is adjacent at the corner and again, he wants to make sure that
when he goes to visit his property he can get in and out just as he can now. He does not want it all torn up. As was
mentioned earlier by the prior speaker, whatever kind of surface can be laid down and be maintained is his concern.
He wants that addressed. If there is any way to make that part of the approval, he would like that done. He does not
want to see the road all torn up. The applicant said five times a month they will be out there for maintenance. They
are going to be doing that and he would assume they are going to maintain some type of road structure. He just
wants to make sure they do and that is his only concern.
Chair Rivenbark stated that the applicant and opposition speaker would each have five minutes to provide
rebuttal remarks.
In applicant rebuttal, Mr. Johnson stated that it is fine to have the condition that his client will repair any
damage that occurs or to make sure to minimize damages which is in his client’s best interest. He asked staff what
the status is of Plantation Road. He would still protect it but would like to know the status. Mr. Farrell responded
that Plantation Road was originally platted prior to 1967 so it has been around for quite a while as an unimproved
dirt road. It was not dedicated necessarily to the public but given the age of the road, NCDOT would consider it
dedicated to the public, but has not adopted it into its maintenance program because it is unimproved. If it were
improved to NCDOT standards and applications submitted to NCDOT, they would evaluate the possibility of taking
it on.
Chair Rivenbark asked how many houses are on the road. Mr. Johnson responded that he does not know
and there is a lot of vacant land. Chair Rivenbark stated that he wonders how many must pass the tower every day
going home. Mr. Johnson stated that he does not know. He knows there are some big developments that have been
approved adjoining it that have not been built and other residential is far to the west. The Military Cutoff Extension,
of course, will go there but it is putting the interchange just like if one goes up and down a lot of interchanges where
they see the tall lights and all that are in the interchanges. It is not unlike those kinds of things being put there. In
terms of the road, the applicant is fine with the condition to protect it. If it is a NCDOT road they will have to get a
driveway permit. Chair Rivenbark stated that he would think it would be in their best interest to keep the road
maintained. Mr. Johnson agreed stating that it is not that often they have to go to the site. During construction is
the toughest time but, obviously, trucking in the tower itself they do not want any damage either because it makes
it difficult to get in. A lot of times mats will be used to get in and out if it is wet, just like what is used in a lot of
construction for logging and utility trucks. He will impress upon his client to do that. The road itself will have to be
gravel into the site, will have to be accessed, and will go through TRC approval. It must be accessible by Fire Services
as to get in and out the road must meet fire code. Any damage his client may cause will be repaired and protected
and he is fine to have that as a condition. If it is a NCDOT road it is going to require that they repair it anyways, even
if it is an unimproved road.
Commissioner Hays stated that she does not believe it is an NCDOT road as it is an unimproved road. She
asked if NCDOT would take it on if it were improved up to their standards. Ms. Roth stated that based on her
understanding it is not in the NCDOT maintenance system. Commissioner Hays stated that is what she thought
because it is an unimproved dirt road. Mr. Johnson stated that his client will protect it and keep it in the shape that
it currently is in and if they damage it, they will fix it. He has no problem with that, and it is a reasonable request and
is certainly what they would want to do in any event to be able to get in and out. Before long, the Military Cutoff
Extension will be completed, and he is sure at some point that road is going to be improved to NCDOT standards.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 674
In opposition rebuttal, Mr. Gordon stated that Mr. Johnson is saying his client would agree to that, but the
road cannot be used due to the condition it is in now. It would have to be improved as he stated in his letter, at
about the four-tenths of a mile access point. NCDOT graveled it right beyond his house to the east as a safety issue
for him to be able to access a hard surface road and for emergency vehicles to access the road. What he would like
to see is Mr. Johnson’s client take it from that point where NCDOT stopped the gravel up to the subject site because
there is going to be added traffic through there.
Chair Rivenbark asked Mr. Gordon if he lived before where the tower is to be located. Mr. Gordon
responded that he lives just east of the tower approximately 900-feet from the subject site.
Mr. Johnson asked Mr. Gordon how far the gravel goes at this time and if it goes past east of the
interchange. Mr. Gordon showed him on the site map where the gravel is located on the road. He confirmed it is all
dirt to the interchange and if there is deep water a truck will not make it down the road. Mr. Johnson stated that it
is in his client’s best interest to make it passable and if there is a need to add some gravel to be able to get traffic in
and out, they are going to do that. Mr. Gordon responded that he wants to see it done as a geogrid because it will
not erode once the road washes over, then the stone put down, and then repaired once construction is complete.
Mr. Johnson responded that he can only say his client will do whatever is commercially reasonable. He would have
to talk with his client about a geogrid and asked Mr. Newman to talk about the request as he is used to them.
Mr. Newman stated that is something where they could look at the existing conditions and determine what
is an appropriate construction method. What is typical for access roads for this type of site would be sub-base
preparation, six to eight inches of engineered stone crush and run, ABC gravel, something like that. Typically, they
do not install a specific geogrid underneath that is able to support the types of vehicles that are required for both
construction and maintenance. He visited the site earlier today and understands the concerns about the weight of
vehicles, but it was easily passable, and he was able to get a Honda Accord down the road. The road is in very good
condition as it stands right now. Again, he understands the concerns about heavier vehicles utilizing the road.
Mr. Gordon stated that there is currently a drought right now and when a large rainfall comes the road will
become saturated and start to fail. The reason he mentioned the geogrid is because when CFPUA installed water
lines through the area they used the geogrid to keep the gravel in place. CFPUA did that for approximately two miles
where all the water wells are inside the subdivision to feed the plant to the south. The geogrid matting keeps the
gravel in place and does not erode as fast and stays in pretty good condition.
Chair Rivenbark stated that the only concern he has is if when Mr. Johnson talks with his client, and they
refuse to do that, what will happen then. Mr. Johnson responded that what he would do is condition it that his client
will do it in a way that the road will not be damaged. He cannot commit to the geogrid, and he is sure CFPUA does
the best of the best to get to what they need to. The subject site does not have traffic probably as regular as what
CFPUA does, but for construction. Again, it is in their best interest to protect the road and he will say that they will
repair any damage and bring it back up to the condition that it was when they came in there.
Chair Rivenbark asked when they go into service the tower and after everything is done, what kind of trucks
are driven into the site. Mr. Johnson stated that it is usually pickup trucks that are used for regular maintenance. If
ever there is a need to add another carrier, a crane will be needed to install the other carrier on the tower, but that
is rare. It is just installing the initial equipment for that carrier and at that point if some more work needs to be done
to be able to get the crane in to do the equipment, his client will do it at that point. Again, with the standard being
that it will be brought back up to the then current existing standard where it is right now. They will not damage it.
Commissioner Hays asked Ms. Roth if during TRC there was mention about this as residents need ingress
and egress and if emergency vehicles access is not part of the TRC process. Ms. Roth responded that normally it is
part TRC process when dealing with a use that would need that type of service on a regular basis. If a condition were
to be added regarding maintenance of the roadway at that point it would become part of the TRC conversation.
Commissioner Hays stated that is what she needed.
Commissioner Zapple stated that he has visited the subject site and thinks the point Mr. Gordon is trying to
make is the roadway is not much more than a dirt path. It is known that the area is about to have a whole lot of work
done to it. CFPUA has announced that along this route water and sewer will be installed. The road is about to become
heavily traveled first by Mr. Johnson’s client’s construction company, as well as the maintenance crew. He thinks
that it would be best for everyone that before the construction is done that the road is upgraded to what Mr.
Johnson’s engineer described, the ABC crush and run, but also with the geogrid to raise Mr. Gordon’s comfort level.
By traveling down Yvonne Road, which is the way to get to Plantation Road, he went past two of the CFPUA wells. It
is amazing how that is held together. He knows it is a little more work and more expensive, but his client is in this
for the long haul and is not putting up a tower that is going to away in five years. A tower is going to be here for
generations, and it is going to do a good job. He does not think it is an unreasonable request that Skyway Towers
takes four-tenths of a mile and provide a basic geogrid and crush and run so that if there is an accident out there,
emergency vehicles can get to it and as all prepare for what all know is coming right up that road. He asked Mr.
Johnson if that would be a condition that he would agree to on behalf of his client. Mr. Johnson stated that the only
question he has is about the geogrid and would like to speak with his engineer about it. However, his feeling is that
he does not want to improve a road to a higher standard than may be necessary, because there is not regular traffic
and knowing that the road is going to be improved with the other forthcoming development. There will be more
going on and once the interchange is in place, it is going to significantly change, and the distance will not be that far
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 675
at all. From the interchange to the site is a very short distance. He does not want his client to have to go in there
doing all that improvement when ultimately the whole road may be redone and NCDOT may come in and improve
the whole road because NCDOT is after getting rid of soil roads. There are still a lot of soil roads in the state.
Commissioner Zapple responded that an ABC crush and run road on geogrid is not what he would call a very smooth
or proper road. It is still extremely rugged, so what is not being discussed is going to any kind of standards. When
NCDOT goes in there it may use some of that and he would stress the “some” for a base as they come in and put in
a proper road. He is sure it will happen but what is being discussed is a long way away. In the meantime, there is a
desire to make sure that Mr. Johnson’s client can get there without trashing the road up with the equipment and
can continue to get there and then emergency vehicles can continue to get to the site. He does not think this is a
heavy lift and asked that Mr. Johnson speak with Mr. Newman. Mr. Johnson responded that his only concern is to
make sure the road is protected and is not damaged so equipment can get to it. He prefers not to necessarily dictate
in a condition what method may be used. He would like Mr. Newman to design that in consultation with his client.
It will be done in a way that it is all weather, that will meet Fire Services access requirements, and if there is damage
it will be repaired. He prefers that and hopes it is understood that it has not been designed and does not want to be
designing it using any specific material if it can be accomplished another way. Commissioner Zapple stated that the
backside of the argument is he thinks what Mr. Gordon does not want, nor does the County, is that once the tower
is constructed and the 80-ton crane that is going to be used is backed out leaving the road in horrible condition. The
concern is that Skyway Towers is going to say it worked for them because they could get an 80-ton crane down the
road and move onto the next project. He does not want that to happen and then someone having to chase down
Mr. Johnson and him saying he will have to talk with his client. Mr. Johnson responded that no, what he is saying is
that it would be repaired to that degree and if there is damage caused by the crane coming in it will be repaired. If
it occurs when the crane is leaving, he is fine to condition the final approval to that. Commissioner Zapple stated
that he is asking for it to be slightly improved with ABC crush and run.
Commissioner Barfield stated that he would assume that the area is going to be greatly improved and that
the tower location is anticipating future growth in the area. What he would also assume is that once the growth
takes place, developers that come in will probably also improve the road. That is typically what has been seen. He
would not want to put an onus on Mr. Johnson and his client to make it any better than what it is but would want it
maintained to what it is. Mr. Johnson responded absolutely. Commissioner Barfield stated he would hate to throw
good money after bad knowing that eventually, something is going to happen there and the whole area is going to
be developed. He thinks that part of the County’s vision is for that quadrant of the County be developed. Again, he
would not want to see the road in any worse shape than it is. Chair Rivenbark stated that how the road is now is
what needs to be established.
Mr. Johnson responded that he and his client will accept a condition that the road will not be damaged and
that repairs will be made even after leaving the site. That can be a condition of the final certificate of approval, which
is the equivalent of a certificate of occupancy, to make sure that is done when the County comes out to inspect it as
part of the building permit. Then if another carrier comes in, they do have to get a permit to be able to do that and
that is the only other time a crane would be at the subject site. The same can be done then and he would think that
is the kind of condition they are looking for and the County inspectors can verify that the damage was repaired. Chair
Rivenbark responded that he thinks as Mr. Gordon said it needs to be improved to where a fire truck or rescue squad
can get in there to get somebody and get back out to where there is no problem at all. Mr. Johnson responded that
is what they do and that is how the sites are built but they are not built with geogrid. They are built as Mr. Newman
stated with the ABC crush and run as that is the way it is done in the industry. Timing wise, if timed right, they will
just do it when the interchange is completed, and it will be a very short distance.
Commissioner Zapple asked Mr. Johnson what he will do when he lays the crush and run, and there is
another hurricane, it gets washed out which is not Mr. Johnson’s fault but now there is a road that is in worse shape
than when his client came on it and who is responsible for it at that point. Mr. Johnson responded in that case and
say this is a private road, all the owners around there contribute, and his client fixes it. This use is no different. The
road as it is now that could happen without the tower being there. His client will contribute to keeping that done
but part of what they must do is they have to have access in a way that emergency vehicles can get in there. They
will improve it to that extent, based upon what Mr. Newman or his firm establishes in consultation with his client as
the best method to do that. He just does not want to specify a particular method. Again, they must do that to allow
for fire access. The width of the road must be 20-feet and they must meet those conditions. Mr. Newman noted that
the access drive that is being designed to be constructed on the parcel itself, going from Plantation Road to the
tower, is going to be designed for all the same equipment that would be coming on Plantation Road, and is not
currently designed to have a geogrid. It is designed to be aggregate supported and that is how they are intending for
it to be designed to manage that level of traffic. Mr. Johnson stated that is exactly what must be done for fire code.
He has worked on many of these sites over the years and has collaborated with engineers and the design on the plan
is the same design that he has seen for all the sites.
County Manager Coudriet stated that he does not want to make a complicated situation more complicated.
He has consulted with the county attorneys and thinks he is right, and it would probably be appropriate for Deputy
County Attorney Kemp Burpeau to approach. However, if the subject road in fact predates 1975, not only does
NCDOT have a responsibility to accept it, but it also has the responsibility to make the improvements unless the laws
changed since 2004. There is a need to have the space to answer that question. It never came to him in the process
of reviewing that the subject road predated 1975 and there was otherwise likely for state assumption and the
obligation to fix it. He would ask Deputy County Attorney Burpeau to come forward and course correct him where
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 676
he is wrong, but he is pretty sure he is not. Also, he has been communicating with Deputy County Manager Tim
Burgess, who also has the same opinion that anything that predates 1975, that in fact is the course of action.
Deputy County Attorney Burpeau stated he is not sworn so he would be presenting as an attorney for the
County, rather than witness. It is his understanding that if the road exists before 1974, and there is evidence that it
was more than just a private access or drive, or a farm road for a specific property, and that it was used as what one
might call a public road, that NCDOT will accept it in the system. NCDOT often would want some evidence that the
road did in fact exist in 1975 such as aerials, probably some kind of a plat, or if not a plat some reference in a deed
that one could find at the Register of Deeds. He thinks possibly County Manager Coudriet’s comment is that he is
thinking the Board is considering requiring the applicant to agree to maintenance and possibly an improvement of
some section of the road, so many linear feet from one direction or the other and for it to be to TRC standards for
an all-terrain road that would be acceptable for emergency vehicles. However, he guesses the point is that at some
point NCDOT may well accept that road and then of course, it would be built to an NCDOT road standard, which
would far exceed the minimum TRC emergency road standard. County Manager Coudriet stated that was correct,
by NCDOT. The hiccup is it is the property owners, not the County, who have the obligation to make the petition to
NCDOT for that to happen. It just makes more complicated what is a very difficult decision, but there may be another
path forward.
Mr. Johnson expressed appreciation for the comments made by County Manager Coudriet and Deputy
County Attorney Burpeau. He stated petitioning NCDOT to take it is an option they have. If they are not able to get
NCDOT to do it, they will make sure the road is in condition to get to the site, so vehicles can get to it, and that any
damage they create will be repaired. However, their line of action will be to cooperate with the County or whoever
in getting NCDOT to accept the road into the state maintenance system as a soil road in the system until such time
as it gets paved. Again, there are many of those farm roads around the state that NCDOT must maintain.
Commissioner Barfield stated that is going to require basically the property owners on the road to sign the
petition. He has sort of gone through that a year ago with another neighborhood. Basically, as the county manager
stated, the neighbors will need to all sign that petition requesting it. He is surprised the folks that live there already
have not attempted to do that some time ago but that is the process. Mr. Johnson responded that he is willing to
consider that as an option, so it is kind of an alternative that they do that or because his client does not want to be
held hostage because one landowner does not want to sign off, or the landowner cannot be found to determine
that. The other option would be that his client would put the gravel in and make sure that any damage is repaired.
It is known there will need to be access and ultimately, it is going to be from the Military Cutoff Road interchange,
and it is not going to be very far at all.
Commissioner Zapple asked Mr. Johnson if in the short term would he accept the TRC minimum standards
for emergency vehicles. Mr. Johnson responded that he would as his client needs to have emergency vehicle access
and that is recognized. Commissioner Zapple asked Deputy County Attorney Burpeau if what he asked was correct.
Deputy County Attorney Burpeau confirmed it was correct. Mr. Johnson reiterated he would accept the condition.
Mr. Meadows stated that he just wants to make sure he understands correctly that the road is going to be
maintained with gravel and if it gets washed out Mr. Johnson’s client is going to come back to fill it all back in up to
where the tower is going to be. He has seen these types of sites and knows the road are maintained and are graveled
and just wants to ensure that is what he can expect to see happen with the subject site. Mr. Johnson responded that
was correct.
Commissioner Barfield stated he would not want to put this on the developer because nature happens. If a
storm/hurricane comes in it is not the responsibility of developer to go in and fix a dirt road. That is not their
responsibility and that is what Mr. Meadows is asking for and that is an act of nature, an act of God. Mr. Meadows
stated that he just asked Mr. Johnson that his client replace up to their property. Commissioner Barfield responded
he would not support anything like that because again, the County has roads that wash out all the time and when a
hurricane comes things happen. He would not want to put the onus on one person to take care of what the Lord has
done. Mr. Gordon stated that if it happens now, he must repair the road and if Mr. Johnson’s client is a landowner
should they have to repair it just as he does. Mr. Johnson responded they can do it through a contribution method
to fix the road, which is normally what is done on a private road, they share it.
Chair Rivenbark asked when the site pictures in the agenda packet were taken. The response received was
that the pictures were taken the last day of February 2023. Chair Rivenbark stated that as he commented earlier,
there is a need to decide a starting point of what the road looks like. Commissioner Zapple stated that as of now an
80-ton crane could not go down the road in its current condition and when it rolls down the road it is going to destroy
what is already there. However, what he is hearing from Mr. Johnson is that his client will get the equipment in there
and when they leave and if there is an act of God or rain, it is only in Skyway Towers’ interest to be able to get their
maintenance vehicles down the road and will fix the road. It is in their best interest to maintain their tower.
Commissioner Zapple asked Mr. Johnson if that was correct. Mr. Johnson responded that his client is going to be
able to have access and that he wanted to show an alternative picture to what the Board has seen in the agenda
packet. Upon approval to approach the Board, he showed the Board a picture taken March 6, 2023 by Mr. Newman
of the subject site and stated he would email it to County staff to be included as part of the record. Chair Rivenbark
stated that he did not have any pictures like the one Mr. Johnson just showed the Board and the ones in the packet
show that the road is rough looking. Commissioner Zapple stated that when he visited the subject site on Sunday,
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 677
March 5, 2023 the road is rough and is not a smooth well maintained area, especially the section for Mr. Gordon’s
property up to where the subject site is located.
Hearing no further discussion, Chair Rivenbark closed the public hearing and asked the applicant whether
he agrees with staff findings. Mr. Johnson stated that he agreed with staff findings. Chair Rivenbark asked for the
Board’s direction on the request.
Motion: Vice Chair Pierce MOVED to approve the Special Use Permit as the Board finds that the application for a
Special Use Permit meets the four required conclusions based on the findings of fact included in the staff report with
following condition to be included as part of the approval:
1. The applicant will repair any damages to the road made by their equipment, and they will not impede
access to adjoining property owners’ property.
Commissioner Hays asked if verbiage could be added stating that the road will be accessible by emergency
vehicles. A brief discussion was held about adding the verbiage to the condition. Mr. Johnson stated that what could
be said is that the applicant will do it to a standard to get emergency vehicles to the applicant’s site if needed. Vice-
Chair Pierce stated that her motion is that they repair any damage they made to the road and that puts it in TRC’s
wheelhouse to move it forward and asked if she was correct. Commissioner Zapple stated that he thinks if Vice-Chair
Pierce adds wording in it about minimum standards of the TRC for emergency vehicles it does. Vice-Chair Pierce
asked who would decide who damaged the road to where they cannot get emergency vehicles down it.
Commissioner Hays stated she was just adding the emergency vehicle part. Vice-Chair Pierce stated she understood
that but does not know how they are going to decide who made it worse so that it is accessible for emergency
vehicles. Ms. Roth stated the verbiage could be that the applicant agrees to make improvements, as identified during
the technical review process to ensure emergency vehicles are allowed to access their site and agrees to repair any
damage to the Plantation roadway caused by their vehicles, either for construction or maintenance. Vice-Chair Pierce
stated she would amend her motion to reflect Ms. Roth’s proposed verbiage.
Amended Motion: Vice Chair Pierce MOVED, SECONDED by Commissioner Zapple to approve the Special Use Permit
as the Board finds that the application for a Special Use Permit meets the four required conclusions based on the
findings of fact included in the staff report with following condition to be included as part of the approval:
1. The applicant agrees to make improvements, as identified during the technical review process to ensure
emergency vehicles are allowed to access their site and agrees to repair any damage to the Plantation roadway
caused by their vehicles, either for construction or maintenance.
Vice-Chair Pierce stated she wants to make sure Ms. Roth has what she needs to move forward. Ms. Roth
responded that she thinks that should be fine during technical review and provides something that her department
can hold the applicant to later in the process.
County Manager Coudriet asked if there was an expectation of the property owners to petition NCDOT to
assume the road. Vice-Chair Pierce stated that she thinks that should be a recommendation of the Board but does
not know that the Board can make them agree with that. Mr. Johnson responded that he would agree with that as
his client would join in and probably would get his property owners to join in it, but he cannot speak for anyone else
and agrees with the recommendation part of it. County Attorney Copley stated that she agrees that the Board can
recommend they apply to NCDOT, but it cannot be required as a condition.
Hearing no further discussion, Chair Rivenbark asked for a vote on the motion on the floor. Upon vote, the
MOTION CARRIED UNANIMOUSLY.
A copy of an order granting a Special Use Permit and listing the findings of facts is contained in SUP Book
IV, Page 92. Also, a copy of the evidence submitted by the petitioner’s attorney is hereby incorporated as part of
the minutes and is contained in Exhibit Book XLIX, Page 5.7.
PUBLIC COMMENTS ON NON-AGENDA ITEMS
Chair Rivenbark stated that no one signed up speak under public comment.
ADDITIONAL AGENDA ITEMS OF BUSINESS
County Manager Coudriet stated that staff is clearly hearing the Board regarding traffic impacts. He has
had several conversations with Ms. Roth about the data being asked for by the Board. He feels the data
being requested is in the staff summary within the applicant’s material, but a better job needs to be
done of making that clearer and better organized. Vice-Chair Pierce requested a visual map with color
coding of what properties are still available for development to show the potential future impacts as it
relates to traffic. Commissioner Zapple stated that he is disturbed by the base information NCDOT is
using and how it may be out of date. Traffic counts during the pandemic are inaccurate and he would
like the one-percent background traffic formula to be updated by the April 3, 2023 meeting. County
Manager Coudriet responded that he does not know if staff could do that as the county planners are
one of about four or five entities party to those decisions. The issue can be raised to ensure that there
is a path to get those review agencies to see things more comprehensively, but he does not think Ms.
Roth and her team singularly could require that change in terms of growth.
NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 35
REGULAR MEETING, MARCH 6, 2023 PAGE 678
Commissioner Barfield stated that he recently had a cornea transplant, and now has a new perspective
on organ donation. He encouraged citizens to consider as they renew their licenses to become organ
donors as it is a gift that continues to help others.
Chair Rivenbark stated that the Board has chosen a person to be the next county attorney upon Wanda
M. Copley’s retirement. Kenneth Jordan Smith will start with the County on May 2, 2023 and will be
taking the seat as county attorney effective July 1, 2023. He asked for a motion to finalize the Board’s
decision.
Motion: Commissioner Hays MOVED, SECONDED by Commissioner Zapple to approve the hiring of Kenneth Jordan
Smith with a start date of May 2, 2023 with the County and to be appointed as the next county attorney effective
July 1, 2023. Upon vote, the MOTION CARRIED UNANIMOUSLY.
ADJOURNMENT
There being no further business, Chair Rivenbark adjourned the meeting at 8:35 p.m.
Respectfully submitted,
Kymberleigh G. Crowell
Clerk to the Board
Please note that the above minutes are not a verbatim record of the New Hanover County Board of Commissioners
meeting. The entire proceedings are available online at www.nhcgov.com.