HomeMy WebLinkAboutOrder - SignedCOUNTY OF NEW HANOVER
STATE OF NORTH CAROLINA
ORDER TO ISSUE A SPECIAL USE PERMIT
Intensive Industry Special Use Permit for High Intensity Mining & Quarrying in an 1-2, Heavy
Industrial Zoning District
S23-05
The County Commissioners for New Hanover County (the "County Commissioners"), having held
a public hearing on March 18, 2024 to consider application number S23-05 submitted by Joseph
Taylor with Murchison, Taylor & Gibson, PLLC (the "Applicant") to place a High Intensity Mine &
Quarry (sand mine) on an approximately 144 acre project area at the 5700 block of Highway 421
identified as Parcel Identification R01500-001-002-002 and having heard all of the evidence and
arguments presented at the hearing, the County Commissioners conclude that the Applicant
produced competent, material, and substantial evidence tending to establish the existence of the
facts and conditions which Section 10.3.5.D of the County Unified Development Ordinance
requires for the issuance of a special use permit, and from the evidence adduced at the hearing,
the Commissioners make the following FINDINGS OF FACT and drawthe following CONCLUSIONS:
1. The County Commissioners FIND AS A FACT that the following specific requirements set forth
in Section 10.3.5.D (1-4) of the County Unified Development Ordinance WILL be satisfied if
the property is developed in accordance with the plans and findings submitted to the County
Commissioners.
(1) The use will not materially endanger the public health or safety if located
where proposed and approved;
(2) The use meets all required conditions and specifications of the Unified
Development Ordinance;
(3) The use will not substantially injure the value of adjoining or abutting
property, or that the use is a public necessity; and
(4) The location and character of the use if developed according to the plan as
submitted and approved will be in harmony with the area in which it is to be
located and in general conformity with the Comprehensive Land Use Plan for
New Hanover County.
2. Therefore, because the County Commissioners conclude that all of the general and specific
conditions precedent to the issuance of a special use permit HAVE been satisfied, IT IS
ORDERED that the application for the issuance of a special use permit be GRANTED subject
to the following conditions:
The Property Owner, upon further discussion with the Cape Fear Public Utility Authority
("CFPUA") and the Lower Cape Fear Water & Sewer Authority ("LCFWASA"), has agreed to
the following additional conditions:
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1. Haul Road/Crossing. The haul road and crossing that is to traverse over the LCFWASA
Easement shall comply with the crossing design initially reviewed and approved on
December 20, 2023 by engineers for CFPUA and the LCFWASA, subject to further
revisions and further mutually agreed changes (including adjusting such plan to include
the Buffer Zone as described below).
2. Buffer Zone. The Property Owner has volunteered to provide an additional buffer
easement of 150 feet (the "Buffer Zone") on the subject property beyond the existing 75
foot LCFWASA easement as it runs west to east, from the eastern edge of the 150'
CP&L/Duke easement over to U.S. Hwy 421, to maintain the safety and stability of the
LCFWASA easement during both normal operations and major weather events.
3. Geotechnical Report & Coordination. Based on discussions with CFPUA and LCFWASA
and their engineers, the Property Owner has already commissioned a geotechnical
report from Engineering Consulting Services (ECS) regarding the side slope stability of
the proposed mining basins, and requested a subsurface utility engineering survey of the
existing water line. The geotechnical report will be sealed by a licensed NC Professional
Engineer. The engineer performing the geotechnical report will coordinate with the
engineers for CFPUA and the LCFWASA. A copy of the geotechnical report will be
provided to both the CFPUA and the LCFWASA for their review. No excavation activity
may proceed at the site until the geotechnical report and its subsequent
recommendations have been received, reviewed, and accepted by all parties. The
reports will take into account the Buffer Zone set forth above, placing the slope of any
future mining basins an estimated 205 feet away from the existing water line. However,
if these reports indicate more study is necessary, the Property Owner will expand the
reports as reasonably necessary to further address the following:
a. Expand the review of the side slope stability of the proposed mining excavation
basins, with a focus on how the LCFWASA easements and buffer areas can be
protected and maintained during and following major weather events.
b. Provide additional detail regarding how the excavated slopes will be sufficiently
stabilized to be protected from erosion or washouts that, during and following
major weather events, could migrate towards the LCFWASA easement and current
and future infrastructure within the easement. If stabilization requires any
additional setback(s) to protect the LCFWASA easements beyond the Buffer Zone
discussed above, the report shall include a designation of such additional setback,
and the Property Owner will provide such additional setback if other proposed
changes are not mutually agreed by LCFWASA and CFPUA.
4. Easement Protection. Property Owner will keep its employees informed about the water
line and take reasonable action to protect the easement area from errant construction
access except at the approved crossing discussed above. To achieve this purpose, the
Property Owner will visibly mark the easement area. The Property Owner will maintain
temporary protective construction fencing and/or barriers on both sides of the haul road
where the haul road traverses the easement and within 50 feet from where the haul
road crosses the easement. In addition, the Property Owner will provide signage at a
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regular interval. All fencing, barriers, markings, and signage shall be maintained by the
Property Owner.
5. Infrastructure Access. Property Owner shall allow CFPUA and LCFWASA access to the
LCFWASA Easement area, including any additional Buffer Zone(s). Subject to all
applicable regulations and guidelines (including all State regulations and mining permit
requirements) and also subject to Property Owner's reasonable safety requirements, the
Property Owner shall allow CFPUA and LCFWASA unrestricted access to the current 48"
and future 54" water infrastructure for maintenance, repair, and installation of future
infrastructure. In times of an emergency, such access shall also be permitted via the mine
site access road if necessary, and Property Owner shall cooperate with CFPUA and
LCFWASA in regard to reasonable steps requested to minimize or prevent any
destabilization of the infrastructure.
6. Changed Conditions. The Property Owner shall give notice to the Executive Directors of
the Cape Fear Public Utility Authority and the Lower Cape Fear Water & Sewer Authority
or their designee of any planned significant change to the Property Owner's mining
operations if the change alters the excavation plans for areas adjacent to the easement
area or Buffer Zone, or involves additional work or access over the easement area or
Buffer Zone, at least 180 days before the change, so they can discuss any potential
impacts.
7. Future Cooperation. The Property Owner, CFPUA and LCFWASA all acknowledge that
protection of both the easement and its infrastructure and protection of landowner's
rights to use and enjoy their land are important for all parties involved and the
community at large. As such, they will each reasonably cooperate with each other in
regard to future changes to the infrastructure within the LCFWASA easement and also
the Property Owner's industrial activities, both of which are important to the overall
development of the Cape Fear region.
8. The 50-foot perimeter buffer and 25-foot vegetative buffer shall be provided as shown
on the approved concept plan.
Ordered this 18th of March, 2024
�bLfSHEn
Bill Rivenbark, Chair
Attest:
Ky rowell, Clerk to the Board
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Exhibit A
Findings of Fact:
(In Accordance with Section 10.3.5 of the New Hanover County Unified Development
Ordinance)
Conclusion 1: The Board must find that the use will not materially endanger the public health
or safety where proposed and developed according to the plan as submitted and approved.
A. CFPUA water is available through a mainline extension. Sewer is available through a force
main to force main connection. No structures are proposed on site, water and sewer
utilities are not required for development.
B. There is an existing CFPUA raw water utility easement along the southern boundary of
the stie. The applicant has provided a condition developed in conjunction with CFPUA and
the Lower Cape Fear Water & Sewer Authority to design the future vehicle crossing to
meet engineering and safety requirements and provide additional easements and
inspections.
C. The subject property is located in the New Hanover County Northern Fire Service District.
D. Access to the site will be provided by the existing full access driveway to Highway 421
through the adjacent sand mine to the south.
E. The proposed use will generate an estimated 44 AM and 7 PM peak hour trips. The
estimated trip generation is less than the estimated trips generated if developed with
other industrial uses.
F. The subject property is within the AE Special Flood Hazard Area. Development must
comply with Article 9 Flood Damage Prevention.
G. The Army Corps of Engineers has determined there are 13.44 acres of regulated wetlands
in the project area. The proposed project has provided buffers along the wetland areas
and will not impact the wetlands. No permits for wetland impacts are required by the
Army Corps of Engineers for the project area.
H. The New Hanover County Conservation Resources Map indicates there are approximately
32.58 acres of Pocosin Conservation Resources in the project area. Section 5.7
Conservation Resources requires a minimum of 0.5 acres be conserved for every 1 acre
of conservation resource above 5 acres. 16.29 acres of conservation space is required to
be retained on site. The project proposes 16.44 acres of conserved space in the project
area comprised of the wetlands and vegetative perimeter buffer.
Conclusion 2: The Board must find that the use meets all required conditions and specifications
of the Unified Development Ordinance.
A. A High Intensity Mine & Quarry is allowed by Special Use Permit in the 1-2, Heavy Industrial
zoning district.
B. Section 4.3.5.C.1.a requires a minimum lot size of one (1) acre. Project area is 144 acres.
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C. Section 4.3.5.C.1.b states soil or other consolidated material (i.e. sand, marl, rock, fossil
deposits, peat, fill or topsoil) may be removed for use off -site. The proposed sand mine
will remove material for use off site.
D. Section 4.3.5.C.1.c states additional on -site processing shall be permitted (i.e. use of
conveyor systems, screening machines, crushing, or other mechanical equipment).
E. Section 4.3.5.C.1.d requires all mining operations and their associated activities be
located a minimum of 100 feet from all property lines when dewatering occurs.
Dewatering occurs off site on an adjacent parcel in an existing facility.
F. Section 4.3.5.C.1.e prohibits high intensity mining operations to be allowed in areas
classified as aquifer resource protection or watershed resource protection identified in
the 2006 CAMA Land Classification Map. The project area is not within an aquifer resource
protection or watershed resource protection area identified in the 2006 CAMA Land
Classification Map.
G. Section 9.8.1.A requires all new construction and substantial improvements be designed
(or modified) and adequately anchored to prevent flotation, collapse, and lateral
movement of the structure. No new structures are proposed with this expansion and the
site currently has no structures to which a substantial improvement would apply.
H. Section 9.8.1.B requires all new construction and substantial improvements be
constructed with materials and utility equipment resistant to flood damage in accordance
with the most current version of FEMA Technical Bulletin 2, Flood Damage -Resistant
Materials Requirements. No new structures are proposed within this expansion and the
site currently has no structures to which a substantial improvement would apply.
I. Section 9.8.1.0 requires all new construction and substantial improvements be
constructed by methods and practices that minimize flood damages. No new structures
are proposed within this expansion and the site currently has no structures to which a
substantial improvement would apply.
J. Section 9.8.1.D requires all new electrical, heating, ventilation, plumbing, air conditioning
equipment, and other service equipment be located at or above the Regulatory Flood
Protection Elevation (RFPE) or designed and installed to prevent water from entering or
accumulating within the components during the occurrence of the base flood. These
include, but are not limited to, HVAC equipment, water softener units, bath / kitchen
fixtures, ductwork, electric / gas meter panels / boxes, utility / cable boxes, water heaters,
and electric outlets / switches. No electrical, heating, ventilation, plumbing, air
conditioning equipment, or other service equipment is proposed.
K. Section 9.8.1.E requires replacements that are part of a substantial improvement,
electrical, heating, ventilation, plumbing, air conditioning equipment, and other service
equipment also meet the provisions of Section 9.8.1.D. No electrical, heating, ventilation,
plumbing, air conditioning equipment, or other service equipment is proposed.
L. Section 9.8.1.F requires replacements that are for maintenance and not part of a
substantial improvement, may be installed at the original location, provided the
additional and / or improvements only comply with the standards for new construction
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consistent with the code and requirements for the original structure. No structural or
mechanical replacements are anticipated as there are no proposed or existing structures.
M. Section 9.8.1.G requires all new and replacement water supply systems be designed to
minimize or eliminate infiltration of floodwaters into the system. The site is not
anticipated to be serviced by water supply.
N. Section 9.8.1.H requires new and replacement sanitary sewage systems be designed to
minimize or eliminate infiltration of floodwaters into the systems and discharges from the
systems into floodwaters. The site is not anticipated to be serviced by sanitary sewage.
0. Section 9.8.1.1 requires on -site waste disposal systems be located and constructed to
avoid impairment to them, or contamination from them, during flooding. No on -site
waste disposal systems are proposed.
P. Section 9.8.1.J states nothing in Article 9 Flood Damage Prevention of the Unified
Development Ordinance shall prevent the repair, reconstruction, or replacement of a
building or structure existing on the effective date of Article 9 and located totally or
partially within the floodway, non -encroachment area, or stream setback, provided there
is no additional encroachment below the Regulatory Flood Protection Elevation in the
floodway, non -encroachment area, or stream setback, and provided that such repair,
reconstruction, or replacement meets all of the other requirements of Article 9.
Q. Section 9.8.1.K prohibits permitting new solid waste disposal facilities and sites,
hazardous waste management facilities, salvage yards, and chemical storage facilities
except by variance in accordance with subsections 6 of Section 9.7.5.1, Conditions for
Variances. A structure or tank for chemical or fuel storage incidental to an allowed use,
or to the operation of a water treatment plant or wastewater treatment facility, may be
located in a Special Flood Hazard Area only if the structure or tank is either elevated or
floodproofed to at least the Regulatory Flood Protection Elevation (RFPE), and certified in
accordance with the provisions of Section 9.7.2.C, Certification Requirements No such
facilities are proposed.
R. Section 9.8.1.E requires all subdivision proposals and other development proposals be
consistent with the need to minimize flood damage. The proposal does not include any
subdivision of land or applicable development proposals.
S. Section 9.8.1.M requires all subdivision proposals and other development proposals have
public utilities and facilities such as sewer, gas, electrical, and water systems located and
constructed to minimize flood damage. The proposed mine will not have anyfacilities that
require public utilities.
T. Section 9.8.1.N requires all subdivision proposals and other development proposals to
have adequate drainage provided to reduce exposure to flood hazards. A Floodplain
Development permit and a Sedimentation and Erosion Control permit are required before
any mining operations may begin on site.
U. Section 9.8.1.0 requires all subdivision proposal and other development proposals have
received all necessary permits from those governmental agencies for which approval is
required by federal or state law, including Section 404 of the Federal Water Pollution
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Control Act Amendments of 1972, 333 U.S.C. 1334. All necessary permits are required
prior to final approval before any mining operations may begin on site.
V. Section 9.8.1.P requires that when a structure is partially located in a Special Flood Hazard
Area, the entire structure shall meet the requirements for new construction and
substantial improvements. No structures are proposed on site.
W. Section 9.8.1.Q requires that when a structure is located in multiple flood hazard zones
or in a flood hazard risk zone with multiple base flood elevations, the provisions for the
more restrictive flood hazard risk zone and highest Bae Flood Elevation (BFE) shall apply.
Parcel is only within the AE flood hazard zone. No structures are proposed on site.
X. Section 9.8.2.13 requires new construction and substantial improvement of any
commercial, industrial, or other non-residential structure shall have the reference level,
including basement, elevated no lower than the Regulatory Flood Protection Elevation
(RFPE). Structures located in Zones A, AE, AH, A0, or A99 may be floodproofed to the RFPE
in -lieu of elevation, provided that all areas of the structure, together with attendant utility
and sanitary facilities, below the RFPE, are watertight with walls substantially
impermeable to the passage of water, using structural components having the capability
of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. For AO
Zones, the floodproofing elevation shall be in accordance with Section 9.8.8, Standards
for Areas of Shallow Flooding (Zone AO). A registered professional engineer or architect
shall certify that the floodproofing standards of this subsection are satisfied. Such
certification shall be provided to the Floodplain Administrator, along with the operational
plan and the inspection and maintenance plan. No new construction or substantial
improvements are proposed that would require floodproofing certification.
Y. Section 5.7.4.C.1 requires all structures and impervious surfaces be setback from the
conservation space, if any, whether the space is located on the parcel or on an adjacent
parcel, a distance of at least 50 feet. Proposed conservation space is a minimum of 50 feet
from known existing and proposed on and off -site impervious surfaces.
Z. Section 5.7.4.C.2 requires that in addition to designing the site to control stormwater
from a ten-year storm, on -site retention or percolation areas shall be required for the
entire parcel sufficient to control, at a minimum, the first 0.5 inch of runoff that will
originate from all impervious surfaces anticipated to be on the site upon final
development. The specified amount of runoff from impervious surfaces shall be disposed
of by percolation into the soil, evaporation, transpiration, or other methods of treatment
or handling acceptable to the County Engineering Department. If approved, county
stormwater permit applications must be reviewed and approved by New Hanover County
Engineering.
Conclusion 3: The Board must find that the use will not substantially injure the value of
adjoining or abutting property or that the use is a public necessity.
A. New Hanover County currently purchases sand from the existing sand mine for landfill
operations. The proposed expansion is to allow additional sand to be removed from the
mine for sale to public and private entities.
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B. The proposed High Intensity Mine & Quarry is on a vacant property that fronts onto
Highway 421.
C. Land uses in the immediate vicinity of the subject site are an existing sand mine, the New
Hanover County landfill, the Pender County Commerce Park, and other industrial uses.
D. A 25-foot-wide vegetative buffer along the northern property line and Highway 421
provides a visual buffer from the right-of-way and adjacent property.
E. A 50-foot-wide setback along the perimeter of the project area provides an additional
spatial buffer around the project.
F. No contradictory evidence has been submitted that this project will substantially injure
the value of adjoining or abutting properties.
Conclusion 4: The Board must find that the location and character of the use if developed
according to the plan as submitted and approved will be in harmony with the area in which it
is to be located and in general conformity with the Comprehensive Land Use Plan for New
Hanover County.
A. The subject site currently undeveloped.
B. No known cultural or archaeological resources are identified on site.
C. The site is bounded by industrially zoned property to the north, south, east, and west.
D. Land uses in the immediate vicinity of the subject site are industrial.
E. The proposed use will generate an estimated 44 AM and 7 PM peak hour trips. The
estimated trip generation is less than the estimated trips generated if developed for a
larger industrial use.
F. The 2016 Comprehensive Plan does not provide specific policy direction for the proposed
use. One of the goals of the plan is to support business success. The Commerce Zone place
type also focuses on providing areas for employment and production hubs,
predominantly composed of light and heavy industrial uses, though office and
complementary commercial uses are also allowed.
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