PB Minutes 20110602-Approved
Page 1 of 6 Minutes of the New Hanover County Planning Board June 2, 2011 The New Hanover County Planning Board met Thursday, June 2, 2011 at 5:30 p.m. in the Assembly Room of the Historic
County Courthouse, Wilmington, NC to hold a public meeting. Planning Board Present: Staff Present: Richard Collier, Chairman Chris O’Keefe, Planning & Inspections Director Andy Heath,
Vice Chairman Jane Daughtridge, Current Planning & Zoning Manager Troy Barboza Sharon Huffman, Assistant County Attorney Melissa Gott Tamara Murphy Absent: Dan Hilla Anthony Prinz Chairman
Richard Collier opened the meeting by welcoming the audience to the public hearing. Chris O’Keefe led the reciting of the Pledge of Allegiance. Chairman Collier reviewed the procedures
for the meeting. Approval of the May Planning Board Meeting Minutes Andy Heath made a motion to approve the May Planning Board meeting minutes as presented. Tamara Murphy seconded the
motion. The Planning Board voted 3-0 to approve the May Planning Board meeting minutes. (Chairman Collier and Troy Barboza were not present at the May meeting). Item 1: Subdivision Text
Amendment (A-388, 06/11) – Request by Staff to amend Section 54 of the County’s Subdivision Ordinance to establish a procedure for confirming the status of improvements and common areas
prior to transfer to homeowner associations, and Section 52-4 of the ordinance to clarify the intent and procedure for publicly platted roads and requests for redesignation of such to
a private road. Jane Daughtridge provided background information on the proposed amendment, noting staff had spent over a year working on the proposal. She mentioned that several cases
had come before the Planning Board appealing TRC decisions to deny speed bumps, gates, etc. on roads, which had been platted as public roads but had not yet been turned over to NCDOT
for maintenance. Because those types of situations have become a growing problem for the County, staff felt it would be a positive idea for homeowners associations and developers to
meet with staff to review those items at the point they were ready to transfer those responsibilities. There
Page 2 of 6 are also other things within the ordinance related to requirements for planned developments, performance residential, and conditional districts with residential pieces that
would be very useful and beneficial to them. Ms. Daughtridge explained that developers fully understand the County’s requirements, but they transfer responsibility for the common areas
to homeowners associations, which consist of people who don’t necessarily have a good understanding of the rules and believe they can make any decision and move forward with it. The
County is then tasked with trying to retrofit or remedy situations where people have invested in things they aren’t allowed to do. To reduce those types of situations, staff felt it
would be beneficial to review the status of all the responsibilities being transferred to an HOA. Ms. Daughtridge explained the proposal includes a required meeting to: 1) confirm the
status of improvements and common areas; 2) describe the expectations that have moved forward based on the approval of the subdivision; 3) answer questions about what can and can’t be
done; and 4) explain the process for amendments or changes, if desired. A rider would be required on the legal instrument of transfer to ensure a track of those answers. The rider would
consist of a summary document of the information conveyed at the meeting. Ms. Daughtridge reported the original draft proposed that the required meeting occur at a Technical Review Committee
(TRC) meeting, but after staff received input from the homebuilders association regarding concerns that TRC would be too cumbersome, the proposal was modified to require a meeting with
staff, who would invite others if needed. Ms. Daughtridge reviewed a plat of The Village at Motts Creek used during the March Planning Board meeting involving an appeal of a TRC decision
denying the installation of gates at the entrances on Sanders Road and River Road. She reminded board members of the difficulty residents had understanding why gates couldn’t be installed
on the the entrance roads which had been platted as public, but would be allowed on other streets platted as private within the neighborhood. Ms. Daughtridge stated the importance of
helping people understand what can and can’t be done before they make an investment. She also noted the requirement in the ordinance that Open Space be dedicated into perpetuity and
the COD issues that arise from time to time. In the case of The Village at Motts Creek, they are required to allow access to a small cemetery located within the neighborhood even though
there is a private link in the road. Ms. Daughtridge explained that an HOA wouldn’t automatically know that type of thing. She also pointed out that occasionally HOAs want to clear out
buffers which must be maintained at 100% opacity or remove trees that must remain in place so a comprehensive review of the various requirements would be very beneficial to homeowners
associations. Ms. Daughtridge summarized Section 52 of the amendment, which would set up a more refined process for the obligations of the dedication for public rights-of-way and for
re-designation of platted road rights-of-way from public to private which may occur from time to time. She explained there is not a refined process for re-designating road rights-of-way
from public to private. Ms. Daughtridge completed her presentation by offering to answer questions from the board. Chairman Collier requested clarification on Section 54-3(a)iii regarding
the obligations and limitations associated with maintaining stormwater facilities and easements, public or private
Page 3 of 6 systems to handle potable water and wastewater, and commented it seemed to mix two different types of utilities. Ms. Daughtridge explained Section 54-3(a) contains a list
of the types of items staff would seek to reconfirm and provided the example of the Masons Landing project recommended for approval by the Planning Board in May, which seeks to remove
four (4) acres from a prior approved conditional district. The project has a community well system to provide residents with water because it was located too far from the public water
system to connect at the time the project was approved. The community is also on septic because the Northeast Interceptor (NEI) was under a moratorium and sewer wasn’t available. Those
items are conditions of the approval of the plat and the expectation is that those connections will occur; the water system will change from private to public and the septic capacity
will change to sewer capacity. She stated staff felt it was important to take the opportunity at the point of transfer to review those items and make the HOA aware of their responsibilities.
Ms. Daughtridge also noted the stormwater requirement to maintain access easements for facilities and the importance of making sure the HOA understands that easements can’t be blocked
off or used for other purposes, knows the locations of the easements and how they were platted, and knows their status. Chairman Collier remarked that it appeared to be the County’s
intent that the developer and homeowners association of any subdivision approved from some point forward would be required to have a meeting prior to the transfer of responsibilities
from the developer to the HOA. It was his impression that the meeting would be informational in nature and involve County staff explaining how all the pieces of the puzzle transfer over
as the developer’s responsibilities terminate and the HOA assumes that role and takes ownership. Ms. Daughtridge affirmed Chairman Collier’s statements and commented that there isn’t
another document or process that informs HOAs about the requirements and responsibilities they are accepting. Currently, a developer simply transfers the responsibilities over to a homeowners
association and the group begins making decisions. Chairman Collier stated he likes the idea of meeting with an HOA to discuss the responsibilities they will assume from a developer;
however, he is concerned the meeting might cause information overload for the HOA, which could result in them backpedaling from signing a required permit for stormwater or water and
sewer or confusion because their opinion of how something looks is different from what the developer is legally obligated to provide. Chairman Collier stated the inclusion of platted
streets and easements was understandable because those items involve legal documents that must be accepted at some point. He acknowledged concern about inserting the County in the middle
of issues, but noted that unfortunately that happens whether there is a meeting or not. He asked for opinions from other board members. Jane Daughtridge provided copies of the state
legislation referenced in Tyler Newman’s email to board members and recognized that the legislation related to the transfer of stormwater permits would, if passed, require that certain
conditions exist and require the HOA to take on the stormwater permit. She reported the legislation appears to be on track to pass in the near future; however, the proposed amendment
isn’t designed to address that issue.
Page 4 of 6 Chairman Collier verified that the two issues that come up most often are stormwater and public streets and suggested that easements, common areas, etc. are benign issues
the HOAs need to know, but aren’t typically issues the County struggles to address later. Chairman Collier opened the floor for public comment. Tyler Newman, of Business Alliance for
a Sound Economy (BASE) and the Wilmington-Cape Fear Homebuilders Association, advised board members that his organization has significant issues with the proposed text amendment. He
commented that one of the stated problems the text amendment is intended to address is transportation improvements, such as speed bumps, etc., and those issues are addressed in the second
half of the amendment. Mr. Newman took issue with Section 54 of the proposed amendment, stating it effectively creates a bureau of HOA management under the County and he didn’t know
if the County needed to be in that position. He acknowledged Mr. Collier had identified some of the potential concerns with having a meeting with a developer and a HOA facilitated by
the County, having conversations about stormwater permit transfer and those types of things. Mr. Newman felt it could be an extremely sticky situation and could put the County in a position
they don’t necessarily need to be in from an enforcement standpoint. He pointed out that the described transfers don’t happen at the same time or in a linear fashion, but depend on the
covenants, the timing, and many other things on a case-by-case basis; and are transactions between an HOA and a developer as provided for in state law. Mr. Newman commented that the
pending legislation referred to by Ms. Daughtridge is the automatic stormwater permit transfer bill crafted by Representative Danny McComas to address some problems in the region, but
would be a statewide automatic permit transfer from the developer to the HOA if 50% of the lots had been sold in the development and the common space had been transferred and the permit
was in substantial compliance; therefore, all those things have been taken care of elsewhere and would transfer. Mr. Newman reminded board members the County had already passed other
amendments about disclosure for private roads and road standards, which is another aspect of the proposal. He stated his opinion that the amendment as presented was not viable because
it would put the County in a difficult position and would create significant problems. Noting the Board had identified the fact that the amendment would affect all subdivisions moving
forward, Mr. Newman again expressed belief that it will be extremely problematic. In summary, Mr. Newman recommended the item be continued so his organization and some of their developers
who have been involved in these issues could meet with staff to explain their concerns and provide real world examples and try to reach a resolution. Melissa Gott acknowledged that she
understood the County staff’s desire to educate the public, but explained her feeling that a required meeting isn’t the correct route to take because it would add another level of bureaucracy.
She commented she tends to believe less government is better in a situation and that these issues should be handled in the private sector, rather than as a County requirement. Ms. Gott
also expressed her belief that HOAs can handle many of these aspects if they hire professionals such as planners, engineers or attorneys. She noted that her law
Page 5 of 6 firm advises homeowners associations and other organizations and walks them through these types of issues. While understanding the County’s desire to assist those HOAs that
don’t have professionals to guide them, Ms. Gott stated her dislike of adding another requirement or layer of red tape that everybody would have to go through. She remarked it would
be nice if the County could provide the service on a voluntary basis for new HOAs to meet with County staff to obtain an understanding of the requirements; however, she doesn’t believe
it would be the right step to basically insert the County as a moderator between a developer and the new HOA management. Ms. Gott indicated she may need to re-read Section 52-4 regarding
the dedication and maintenance obligations for the public rights-of-way, but didn’t have any immediate problems with it. She expressed some concern about ensuring NCDOT would accept
the roads prior to transferring the common areas and the maintenance, etc., but noted there is a waiver through TRC. She explained that sometimes NCDOT will come back after they have
provided the requirements and add additional requirements on top of those so she was concerned, but she didn’t have the grave concerns she has about Section 54. Melissa Gott then recommended
that discussion of the amendment be continued to the next Planning Board meeting based upon comments received from the two absent Planning Board members who would like to address their
concerns with the amendment. No other comments were made by Planning Board members on either section of the amendment. Melissa Gott made a motion to continue Subdivision Text Amendment
A-388 to the next Planning Board meeting in July. Tamara Murphy seconded the motion. The Planning Board voted 5-0 to continue Subdivision Text Amendment A-388 to the July 7, 2011 Planning
Board meeting. Technical Review Committee Report (May) Chairman Richard Collier reported there were no TRC meetings during the month of May. No additional items were brought forward
for discussion by the Planning Board. Chris O’Keefe reminded board members of his standing offer to focus staff attention and hold work sessions on issues suggested by Planning Board
members. He also stated staff was open to discussions with board members who would like to play a more significant role in current issues. In addition, Mr. O’Keefe communicated his desire
to ensure that Planning Board members receive the information they feel they need to fulfill their very important role. Chairman Collier asked staff for an update on the Market Street
Corridor Plan. Chris O’Keefe reported that Mike Kozlosky, Executive Director of the Wilmington MPO, will present the Market Street Corridor Plan to the County Commissioners at their
June 20, 2011 meeting. At that meeting, the Commissioners will also hear a presentation from staff regarding sign ordinance enforcement issues. He stated staff is hopeful the Commissioners
will adopt the
Page 6 of 6 Market Street Corridor Plan on that date and instruct staff to proceed with reviewing the Model Ordinance to determine which parts of it can be adopted later to assist staff
with the implementation of the corridor plan. Chairman Richard Collier adjourned the meeting at 5:55 p.m. Respectfully submitted, _______________________________________ Chris O’Keefe,
Planning & Inspections Director