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Order - 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: Page 1 of 8 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 Page 2 of 8 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 Page 3 of 8 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. Page 4 of 8 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 Page 5 of 8 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 Page 6 of 8 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. Page 7 of 8 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. Page 8 of 8