PB Minutes 20110707-Approved
Page 1 of 18 Minutes of the New Hanover County Planning Board July 7, 2011 The New Hanover County Planning Board met Thursday, July 7, 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 Shawn Ralston, Long Range Planning Manager Melissa Gott Sam Burgess, Subdivision Review Planner Dan Hilla
Nicole Dreibelbis, Current Planner Tamara Murphy Chris Coudriet, Assistant County Manager Anthony Prinz Sharon Huffman, Assistant County Attorney Chairman Richard Collier opened the
meeting by welcoming the audience to the public hearing. Sam Burgess led the reciting of the Pledge of Allegiance. Chairman Collier reviewed the procedures for the meeting. Approval
of the June Planning Board Meeting Minutes Dan Hilla made a motion to approve the June Planning Board meeting minutes. The Planning Board voted 7-0 to approve the June Planning Board
meeting minutes. 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. This item was continued from the Planning Board’s June 2, 2011 meeting. Chairman Collier announced Subdivision Text Amendment
A-388 had been removed from the agenda and postponed until a future date to be determined. Chris O’Keefe reported some parties had not been able to submit information to staff regarding
the proposed amendment; therefore, the period of time for public comment had been extended. Staff hoped to bring the amendment back for consideration at the August meeting.
Page 2 of 18 Item 2: Text Amendment (A-394, 07/11)-Request by Michael Edwards to amend Sections 59.3.4(6) and 59.3.5 of the County’s Zoning Ordinance to revise the dimensional and access
requirements for the Airport Industrial (AI) Zoning District. Jane Daughtridge provided a brief overview of the proposal, which requests an amendment of the AI district zoning regulations.
She noted the minimum lot size in the AI district is 1 acre; however, there is a provision within the ordinance allowing the owner of a piece of property less than 1 acre in size platted
prior to 1981 to use it for industrial purposes as long as it is not located within an approach zone to the airport. She reported a situation has arisen in which a property owner wishes
to request a rezoning, if the text amendment moves forward, to put a business in the AI district, but his property is located in an airport approach zone. The proposal is essentially
to change that language in a way and staff has suggested a refinement to the proposal in order to ensure the result the applicant is seeking. The amendment basically states if someone
came in with a proposal for a conditional rezoning, which already requires an upper level review; it could potentially be located in an airport approach zone. The review would give the
Airport Authority and others an opportunity to weigh in if someone was proposing something that would be contradictory to what would be satisfactory to the airport. Ms. Daughtridge reported
the applicant seemed to be in agreement with the refinement to the language as suggested by staff. She provided a rendering of the Airport Height Zones and pointed out the proposed amendment
would not apply to Airport Residential areas. She explained the proposal would have limited application; therefore, staff felt it would be a reasonable change in the ordinance. Dan Hilla
asked if FAA approval was currently required for projects within those zones or would be required if the amendment was approved. Ms. Daughtridge explained the owner would only be required
to obtain FAA approval if the proposed structure was higher than the maximum height allowed, but the proposed amendment wouldn’t change the maximum height requirement of 35 feet. Matt
Nichols, an attorney with Shanklin & Nichols representing the applicant, Michael Edwards, explained that Mr. Edwards and his father, Ronald Edwards, are the owners of a business located
in New Hanover County called Precision Cams, and are seeking an amendment to the ordinance in anticipation of submitting a conditional use zoning application. He stated that others may
also benefit from the proposed changes to the ordinance and that he agreed with the revisions made by staff to the proposal. He thanked staff for their time and commented that the revisions
staff had made to the proposal were improvements to the ordinance. Mr. Nichols pointed out the proposal doesn’t permit anyone the right to do anything; it simply allows the Planning
Board and County Commissioners to consider a broader array of rezoning requests. He noted rezoning requests, whether straight rezoning or conditional district rezoning, are completely
within the discretion of the Planning Board and the County Commissioners. He explained the proposal is limited to the conditional district rezoning requests, which is perhaps the ideal
process when considering any rezoning because it enables the board to consider traffic impact, a specific site plan, the location of the building, and many things that can’t be considered
in a straight rezoning. He stated the amendment has been tailored specifically to apply only to conditional district rezoning requests, which would have extensive submittal, notice and
Page 3 of 18 community meeting requirements. He commented that either board could place any number of limitations or conditions on a conditional use rezoning, including limiting hours,
building height, etc. Mr. Nichols said if the amendment was approved they would be proposing an 18 feet high, 3,000 square foot building to relocate the Precision Cams business to family-owned
property which is adjacent to A&I zoning, but is currently zoned Airport Residential. Mr. Nichols stated the proposed amendment would allow others that may have property zoned Airport
Residential that is next to the A&I zone and also happens to be in the airport approach paths to benefit or at least allows the board to consider the possibility of an AI rezoning limited
to the facts and circumstances of each matter brought before them. He acknowledged the provisions they sought to amend have been in the code for some time and pre-date the conditional
use rezoning ordinance, which came into effect in the 1990s. At the time those provisions were passed, the County didn’t have the tool of considering conditional use rezoning requests.
He commented that the conditional use rezoning request is a great tool because it allows certainty in the rezoning and allows the County to have control over the rezoning. He also asserted
his belief that the County’s ability now to conditionally zone property weighs in favor of amending the ordinance. Mr. Nichols thanked the board for their consideration of the proposal,
expressed appreciation for staff’s support and assistance, and offered to answer questions. No one from the public spoke in opposition to the proposed text amendment. Anthony Prinz made
a motion to recommend approval of Text Amendment A-394 as drafted by the applicant and amended by the staff. The Planning Board voted 5-0 to approve Text Amendment A-394 as drafted by
the applicant and amended by the staff. Item 3: Text Amendment (A-391, 06/11) -Request by Staff to amend Sections II, IV, V, and VI of the County’s Zoning Ordinance to improve classification
of Industrial Uses and to create a Special Use review process for intensive industrial uses. Shawn Ralston provided a brief history of the ordinance, noting most of the ordinance was
adopted in 1969 and zones were created for I-1, I-2, B-1, B-2, etc. and changes to the ordinance were made piece meal over the years. In recent years, however, staff intensively reviewed
the ordinance to determine areas that need to be updated and created a priority list of those areas. Ms. Ralston explained the proposed text amendment making changes to the industrial
language in the zoning ordinance was at the top of the priority list. Ms. Ralston stated the language in the original ordinance adopted in 1969 set aside two areas of the county as industrial,
I-1 Light Industrial and I-2 Heavy Industrial. Essentially I-1 was set aside for light industrial uses, which are of an industrial warehousing and storage nature that don’t create an
excessive amount of noise, odor, smoke, dust or airborne debris or other objectionable characteristics that might be detrimental to surrounding neighborhoods. The I-2 Heavy Industrial
District was established to provide for uses that would produce excessive noise, odor, smoke, dust, airborne debris or any other objectionable characteristics which might be detrimental
to the health, safety and welfare of surrounding neighborhoods and/or communities. She noted the County was very confident in saying we have set aside this area of the county for whatever
industry you want to bring here.
Page 4 of 18 Ms. Ralston explained that the County also created a couple of regulations for both the I-1 & I-2 districts, which are very minimal. For example, there is no minimum lot
size; however, the minimum size for an I-1 or I-2 district is 5 acres. In addition, there are no minimum rear or side yard setbacks and there would only be a setback if the property
was abutting residential areas. That is the same as in other areas of the ordinance regarding a non-residential use abutting a residential use. There weren’t any provisions in the ordinance
to protect competing land uses. The industrial districts were located on the outskirts of the county, with a large area of heavy industry in the northwestern area and the other area
of heavy industry in the middle northern area of the county. The I-1 Light Industrial zoning districts are scattered about the northern part of the county. There is also a small area
of I-2 where the port and terminals are located on the Cape Fear River. Originally, the heavy industrial districts were located on the outskirts of the county away from the areas where
the population centers were located. In 1969, most of the population was centered around the city, with some growth in the Smith Creek and Castle Hayne areas, and toward Monkey Junction
and Carolina Beach. Since that time, the population has really grown in all areas of the County, including the Porters Neck area, northeastern New Hanover County, the area around Castle
Hayne, the northwestern and southern parts of the county, and around the beaches. Little by little, the residential areas have infringed on the heavy industrial areas. She noted other
items of consideration included the large number of wells that have been established in these areas, many of them in close proximity to the heavy industrial districts and a lot of schools.
Ms. Ralston also pointed out two new schools, a middle school and an elementary school, located in the northernmost part of the county on the fringe of one of the heavy industrial areas.
Ms. Ralston stated in 2006, New Hanover County adopted a CAMA Land Use Plan and there were three policies in that plan that specifically addressed our need to provide some more protections
for these industrial areas, specifically Policy 3.27 talked about developing standards or guidelines in order to protect groundwater as it related to mining activities, Policy 3.30 talked
about providing policies and implementation strategies for suitable locations for industries in order to protect residents, and Policy 4.2 did the same thing as 3.30 except it talked
about protecting our ecosystem from industrial impacts and also talks about protecting our infrastructure and locating industry near existing infrastructure. When the CAMA Land Use Plan
was adopted, a CAMA Land Classification Map was also created. Much of the area in the northwestern part of the county, which is zoned heavy industry, has been classified as Conservation
on that map, including Aquifer Resource Protection and Natural Heritage Resource Protection areas. The other heavy industrial area of the County also contains many areas classified as
Conservation on that map, including Wetland Resource Protection and Aquifer Resource Protection areas. It is important to note that although we have put all these protections in place
and created all of these maps that the Planning Board considers when someone requests a special use permit or requests a rezoning, anyone can locate in any one of these heavy industrial
areas by right and they can’t be considered. There are federal and state agencies that review these projects, for example, the Division of Water Quality, Army Corps of Engineers, and
Division of Air Quality. Ms. Ralston explained a typical permit review for the Division of Air Quality, noting the first thing they would do is require the applicant to send a zoning
compliance letter to the jurisdiction in which they are applying to locate their industry, which asks if the industry will be in
Page 5 of 18 compliance with the area’s zoning regulations if they locate here. The community has 15 days to respond and if they do not respond, the applicant only has to provide proof
that they sent the letter to the jurisdiction and the Division of Air Quality will proceed without their response. There is no further zoning review. They focus on air quality emissions;
look at the types of emissions that will be generated from that facility and conduct a very thorough review of those emissions. They are typically not looking at cumulative impacts so
if for instance, a facility is proposing to emit sulfur dioxide, if there is another facility down the road that is also emitting sulfur dioxide already, they are not looking at the
cumulative impact those two facilities will have on the community. They are only looking at that one proposed applicant. If the area has been designated as non-attainment, they may look
at cumulative impacts, but not always. Importantly, they are not considering competing land uses. They are not considering whether the industry is locating near residences, retirement
communities, schools, etc. Even though we do have these agencies reviewing permits for industries, we still have degraded environmental quality here and it has continued to degrade in
some respects. Our surface water quality for instance, the Cape Fear River, is on the 303 D list and has been cited for violations of dissolved oxygen, pH turbidity, copper, arsenic,
nickel, and mercury. The quality of our groundwater continues to degrade with saltwater intrusion and there is an overall diminished water quality of our aquifer. Most recently, we have
air quality concerns. New Hanover County is the only county in North Carolina that has a monitor that is violating EPA’s new sulfur dioxide standard so as a result, we are being threatened
with being designated as non-attainment. The area being threatened with non-attainment designation also coincides with the heavy industrial area in the northwestern part of the county.
EPA is also in the process of revising and lowering the ozone standard. Currently, New Hanover County meets that standard, but we are very close to it so if the EPA lowers the standard,
chances are we will also become non-attainment for ozone. In addition to that, particulate matter is also monitored here. New Hanover County comes close to that standard as well. The
Division of Air Quality has two monitoring stations in New Hanover County located in our industrial areas. The things that happen in those industrial areas have a great impact on those
monitors. Ms. Ralston explained that staff had put together all of this background information to let you know what we were thinking when we were drafting new language for the amendment
being considered tonight. Jane Daughtridge then explained that staff had put a great deal of work into the proposed amendment over a long period of time. The County finds itself in a
position where conflicts are growing around the residential areas and industrial areas and we have very few tools in place to address those conflicts as they arise or protect ourselves
from future conflicts so staff looked at both sections of industrial districts as a whole to determine how they should address these issues and drafted this proposal. Staff tried to
redefine Industrial Uses on the Table of Uses based on the intensity of the process and not based on the name of the use. She explained that is important because the name of any use,
for example, a leather manufacturer could be a low scale artisan type of leather goods creator or it could be a very high level creator with many potentially uncomfortable or unfortunate
side effects. Ms. Daughtridge stated Section 4 of the ordinance addresses nonconforming situations, which would be created by the proposal. Staff wanted to ensure that everyone understood
what the expectations would be, particularly for the heavy industrial category that we had created, which would become nonconforming based on not having a special use permit.
Page 6 of 18 Ms. Daughtridge noted staff changed the intent description in Section 5, which contains the district regulations. The Light Industrial district expands its intent beyond
storage to include some less intensive manufacturing opportunities as long as they obtain a special use permit. Ms. Daughtridge stated the I-2 district language has been modified from
the stark language that invites any type of heavy use to acknowledge there are heavy industries that we need and want in our area, but there is a need for review and the desire to have
rules in place that would allow for those types of uses in those locations. We have modified the Table of Permitted Uses to reflect these redefined use categories and to add in some
of those uses from the I-1 that aren’t in the currently ordinance. Ms. Daughtridge reported in Section 7, the Special Use Permit section, staff included specific standards for mining,
which other locations tend to have and New Hanover County doesn’t have. Staff borrowed a definition of mining from the Division of Coastal Management and made a slight modification to
it that dampens it down a bit. Otherwise, staff has placed specific standards for mining in the special use permit. She explained those were the ways staff had attempted to address those
concerns. Nicole Dreibelbis then presented the Use categories and the Table of Uses, noting some of the proposed changes were very complex. She then reviewed the definitions for the
four manufacturing categories being proposed. The initial category is Artisan Manufacturing, which is defined as onsite production of goods by hand manufacturing involving the use of
hand tools and small scale light mechanical equipment. Items in this category include cabinet and woodworking shop, furniture and fixtures, and furniture and fixtures with no outside
storage. The second category proposed is entitled Limited Manufacturing and is defined as the manufacturing of finished parts or products primarily from previously prepared materials.
Current uses identified as industrial and where they would fall under the limited manufacturing definition. The third category is General Manufacturing, which involves the manufacturing,
bulk storage, and/or handling of finished or unfinished products primarily from extracted raw, recycled or secondary materials. The last manufacturing category is Intensive Manufacturing,
which is acknowledged as the manufacturing and processing of products in extensive, but not exhaustive list of chemicals. Current uses associated under the current Table of Permitted
Uses with the Intensive Manufacturing label include items such as chemicals and allied products, petroleum and related products, stone, clay, glass and concrete products and a few others
listed on the table. She pointed out that some items listed in the current table may fall into more than one category, depending on the intensity of that particular use and those uses
are identified with an asterisk on the table. Upon defining the variety of manufacturing permitted in the Industrial districts, staff stumbled across some more definitions that were
necessary to provide a more concise explanation for some of the manufacturing categories. Some of the items proposed to be added to the definition list include two versions of mining,
both a low and high intensity, which are differentiated by affected acreage, use of explosives, depth, and area classification. The other two definitions included are electricity generating
facility and fuel bulk storage facilities. Both uses are identified as intensive manufacturing and staff felt it necessary to clearly define them. Ms. Dreibelbis provided a table illustrating
which industrial uses would be affected as a result of the proposal. She added that not only are we requiring special use permits for certain intense
Page 7 of 18 uses in the I-2 districts, we are also adding some uses permitted by right to the I-1 districts, such as the furniture and fixtures. The current ordinance only allows them
to be permitted in an I-2 district and the proposed revision will also allow them to be located in the less intense I-1 district. There are a couple of those examples identified in the
table provided to board members. In conclusion, she acknowledged the question had arisen during staff’s outreach about how other communities in North Carolina regulate their industrial
uses and explained that research illustrated that 46 counties require some type of extensive review, whether it be a conditional use permit or a special use permit. 19 counties require
a conditional use permit, 26 counties require a special use permit, and one county requires one or the other depending on the intensity of the issue. Ms. Dreibelbis also noted the addition
of two sections on the table, including the supplemental regulations, which shows other areas areas within the ordinance that address that particular use, and the NAICS or North American
Industry Classification System that is being added to more tables across the state and is an opportunity to get everyone on the same page when it comes to defining what the use is in
the table. NAICS is not specific to industrial uses; there are some commercial uses that are identified and defined more clearly through that particular code. Chris O’Keefe explained
the supplemental regulations and the NAICS will help classify industries appropriately based on the intensity of their uses. Further, he reiterated this has been an ongoing process as
part of the Ordinance Improvement Effort and the entire Planning staff has been involved in the effort and a tremendous amount of work has gone into it. He explained that despite that
fact, the timing of when the item went onto the agenda was relatively accelerated, and because of that staff continued to receive information in the last few days and today which was
distributed to board members just prior to the meeting. Mr. O’Keefe stated it was important for the board to review that information and listen to the comments from the people in the
audience. Dan Hilla asked what measures were taken to notify the landowners and stakeholders who will be directly affected by the proposed ordinance change. Jane Daughtridge responded
that there was a rather large contact list, including WID and WDI and the Sunshine List. The first stakeholder meeting was held in March. The industrial community has been late coming
to the table, but we have received input from the industrial community in recent days and had a tremendous outpouring of input from the community at large. Everything received prior
to the mailing of the agenda package was included and the correspondence received since that date was distributed at the beginning of the Planning Board meeting. Chris O’Keefe added
that there are two groups that might be impacted by the text amendment – the existing industries, which want to know how how they will be treated through the ordinance, if they will
become nonconforming uses, and what abilities they will have as time moves on to expand their operations with or without obtaining a special use permit, and the broader general public,
which staff has reach out to through public notices, Facebook, the website, and NHCTV. He noted staff had done a good job of communicating the language of the amendment to the public
at large.
Page 8 of 18 Shawn Ralston commented that the original notice to the Sunshine List was expanded to include the industrial community. Many of the representatives of the industrial community
then passed information along to their constituents. Staff made the effort to get this information to the industrial community because they knew they would be most affected by the changes.
She thanked the media for also providing information to the public and bringing this issue to the public’s attention. Chairman Collier opened the floor for public comment. Lloyd Smith
identified himself as a business owner and business property owner in Wilmington, a residential real estate owner in New Hanover County and a parent of children in New Hanover County
Schools, and noted his children may be attending the Holly Shelter Middle School which is close to an industrial area and is of primary concern to him. He stated he was also a concerned
citizen working on the idea of smart and sustainable economic development and encouraged the board to adopt the ordinance change to address one parameter that can reasonably be improved
in the economic development picture. Quality of life is one of ten contributing factors in Wilmington’s recent #3 national ranking by CNBC. North Carolina already ranks relatively low,
33rd, on quality of life. The CNBC quality of life index is based on local attractions, the crime rate, healthcare, and air and water quality. Where quality of life is concerned, we
are below the median. He asserted that industrial projects permitted at the state level without local review contributed to the relatively low quality of life ranking because overall
we are ranked #3 due to our high ratings on almost everything else. The only other factor where we rank below the median is the economy in general. We could try to improve our economy
by inviting any use and employers to bring relatively few, polluting, low tech, dirty manufacturing jobs thinking that is going to address the economy, but a more rational approach would
be to focus on raising our quality of life index by tightening up our standards for polluters because improving our quality of life will attract and keep clean businesses which will
in turn improve the economy and create jobs. He explained he and his wife moved their business here for quality of life and quality of place reasons and he had heard their story repeated
many times by other entrepreneurs who moved here for similar reasons. Entrepreneurs can and will move their business where they want to be and where they can attract employees. Mike
Giles, a resident of New Hanover County, stated he works for the N.C. Coastal Federation and he applauded County staff and the Planning Board for allowing the public the opportunity
to look at this issue. He commented New Hanover County is a special place, he enjoys living here, and is proud to be a New Hanover County resident. He stated, as an employee of the NC
Coastal Federation, he tries to look at the broad picture. As Ms. Daughtridge stated, the current open zoning laws allow the worst uses to come to our county. Our county should want
the best to come to the county. With the current zoning, the public health risk puts our population at risk. The EPA and the State Division of Air Quality look at regulations on a broad
based, region-wide perspective and not on a local, site-specific basis. In the industrial area in the north, there are two new schools with over 8,500 school children within five miles
of a proposed heavy industrial mining and cement plant operation. Mr. Giles urged the Planning Board to approve the proposed text amendment, noting it will make the County better and
will give a local review of projects and a standard by which we will attract good industry, which won’t affect our children, water or health in a detrimental way.
Page 9 of 18 Scott Sullivan, spoke in opposition to the proposed amendment, stating he was an employee of Cameron Management, a
member of the Coalition for Economic Development, a past president of the Wilmington Industrial Development Committee of 100, a residential and industrial land owner in Castle Hayne,
in other areas of New Hanover County, and in Pender County, and a residential landowner in several other area counties. He explained that he had been a resident of New Hanover County
for 25 years and his wife’s family had resided here for a couple of centuries. He commented he didn’t understand why there was an accelerated process for the amendment when it is a decision
of great magnitude. He expressed concern that staff had not addressed the potential economic impact of the amendment to existing industry. He stated there was no reason to rush the amendment
and recommended the proposal be considered at a later date so that more people and stakeholders could be brought into the process. Mr. Sullivan noted the two major issues were the definitions
of the uses and classifications and the definitions within the ordinance that are undefined and will be problematic. He urged board members to take more time to study the issue. John
Elliott, Regional Manager for Progress Energy, thanked the Planning Board and staff for their hard work to make New Hanover County a great place to live and do business. He noted staff
had conducted outreach to certain industries to provide feedback and stated he had provided input as the draft ordinance had changed during the process. Mr. Elliott stated he appreciated
the opportunity to have some input in a very important document will regulate and govern existing industry going forward. He reported Progress Energy is in the process of building a
new state of the art $600 million gas-fired generating facility at the Sutton Plant off Highway 421 and will be discontinuing the use of coal once that construction is completed in 2013.
One of the main concerns he had addressed with staff was that the new plant would automatically become a non-conforming use upon approval of the proposed amendment, which would be problematic
and bring many implications, including the inability to rebuild after a partial or full destruction of the facility, possible problems with lenders and insurers, and possible problems
with regulatory oversight. Progress Energy is the most heavily regulated industry in the state so they are concerned about the potential implications of being identified as a non-conforming
use. With Progress Energy being an electric utility, they are governed statutorily by the NC Electric Utility Commission. He explained they also feel that in the current state, it would
be a redundant regulatory process for an existing industry to go through should they want to expand their solar field to require a special use permit for additional solar fields on the
3,000 acres site or to make a modification or change or add an additional gas unit. Those types of decisions are normally under the regulation of the NC Electric Utility Commission,
which oversees that process and approves and provides certificates to move forward with those projects. Adding another level of uncertainty to that process as you look to provide electric
generating capability and power to the people in this region and for the rate payers, who ultimately pay for all of the various processes Progress Energy has to go through to get a unit
up and running. Mr. Elliott noted the requirement to seek special use permits for new construction going forward at the facility. They would also like clarity of some of the definitions
and other language in the amendment. He asked the Planning Board members to take their comments and concerns under advisement as they review the amendment which will have large implications
for everyone. Stuart Egerton, an attorney and resident of Wilmington, stated he also works occasionally for Progress Energy and mentioned it had been a task to review the ordinance over
the last 10-12
Page 10 of 18 weeks. He commented they had tendered a new draft containing a few tweaks to the I-2 intensive industry I-2 classifications, mainly trying to lessen the impact of becoming
a non-conforming use. In their appellate cases, there have been several cases where non-conforming uses have been reviewed and non-conforming uses are not favored at all in their continuing
existence when industries or businesses find themselves in those circumstances. This is an unusual ordinance where current heavy industry is going to find itself being a non-conforming
use in the only district in which it can be located. Usually non-conforming uses when they cease to exist in their districts, it is because their district has changed from something
like an industrial district to a general business district, but they have been grandfathered in. Those businesses do not exist forever though; the goal is to get them to move to an industrial
district. In this case, there is no other location for an intensive industry to go but this district right now. If you try to marry the text of the new amendment with existing language
within the ordinance, such as Section 40, the general premise of non-conforming uses, Section 40-1 states it is the intent of this ordinance to permit these non-conformities to continue
until they are removed, but not to encourage their continual use. Mr. Egerton stated it is a problem if you encourage the end of the biggest electrical generating facility in the county.
The NC Utilities Commission knows the plant serves a number of counties besides New Hanover County and interfering with the turf of the utilities commission would be an unintended consequence
that may arise out of the current drafts unless they are studied further and with more intense dialogue. Noting the definition of a non-conforming use, Mr. Egerton asked where businesses
could seek financing if the goal of the security being put up to the financer could be made unlawful and could be run from its district with no alternatives. He commented the devil is
in the details, and the details are to avoid unintended consequences. He echoed Scott Sullivan in recommending more time to avoid the unintended consequences and stated furtherance of
discussions would be needed. Bill King, a native Wilmingtonian and former employee of a large facility in the county, echoed Mr. Sullivan and Mr. Egerton’s concerns about the unintended
consequences of the proposed ordinance change. He commented he wasn’t sure he understood them all after reading multiple drafts. He stated companies, specifically the current industries,
invest a lot of money in their locations, and the situation created by the amendment may be constraining regarding what they can and can’t do. He noted it was not as clearly defined
as many of the other regulatory agencies that govern those industries and proposed the board get more input and take more time to understand what will happen with the proposed change.
Chairman Collier opened the floor for rebuttal comments. Tracy Skrabal, a resident and an an employee of the NC Coastal Federation, offered rebuttal comments in support of the text amendment,
stating her organization had been involved since March and thanked the staff for doing an exemplary job of getting the word out to all sectors of the community. She noted there were
industrial representatives at the first meeting she attended and commented that staff had been very forthright and public with various versions of the draft and have been available at
any time to answer questions about the implications and work with accommodating unintended consequences. She stated her desire to see the amendment stay on track, acknowledging they
and the residents living adjacent to or within the I-2 districts had waited a long time to have at least a process in place. She commented that everyone needed to remember the amendment
sets up a review and permit process, not a denial process. It allows
Page 11 of 18 the County the opportunity to look at the industries asking to come into the community. She noted it is not a denial for existing industries, but simply a process they
would have to go through when they sought to expand. John Elliott, offered rebuttal in opposition to the amendment, stating it was his understanding in regard to special use permits,
the Planning Board and the County Commissioners have denial rights as currently written into the ordinance so they could certainly deny any permit request. He explained it is a review,
but also a decision making process in which a permit request can be denied by the board having the same effect as law. Chairman Collier closed the public hearing. Tamara Murphy commented
she doesn’t disagree with most of the amendment, but she does disagree with the extra review process and expressed concern it may have an impact on industries that wish to come to the
area. She felt that if those industries are already regulated by the EPA and other federal government government agencies and state agencies, the County may not need to get into that
process. Andy Heath asked Ms. Daughtridge to describe the special use permit process for existing industries that wanted to be in compliance. Ms. Daughtridge stated there is an exclusion
for existing industries that allows them to continue as they are without a special use permit and to expand their operation onto adjacent properties they own without applying for a special
use permit so that process is in place. She explained for those concerned about being tagged as a non-conforming use, there is nothing in the ordinance to prohibit them from requesting
a special use permit and she would find it hard to imagine the Commissioners wouldn’t approve a special use permit for Progress Energy. They would need to provide evidence that what
they are proposing to do would not be harmful in that location, as expected of any industry. She explained the special use permit would legitimize the industry immediately, but even
without that, any existing industry could continue as they are today and can even change their processes as long as they don’t fall out of the category they are currently in. Ms. Daughtridge
noted as stated by the attorney, non-conforming situations as a rule are not viewed with that kind of generosity, but the County has created it in this instance for these particular
industries. She explained the County’s ordinance currently allows a non-conforming use even without any exemptions to be rebuilt after disasters as long as the County is notified within
180 days of the intent to rebuild. Shawn Ralston commented that entrenched in the special use permit, staff has added the review of external effects which requests a narrative from the
applicant stating which additional permits the applicant will have to seek through the process so the Commissioners and Planning Board will know what other agencies will be reviewing
the permits. County staff will not be conducting the reviews.
Page 12 of 18 Melissa Gott stated she had several concerns, noting the special use process is costly, time consuming, and unfortunately it is subject to political pressure. She commented
she was greatly concerned with putting an additional requirement on property owners that already by right can do something on their property and then changing the by right uses on their
property, noting she didn’t feel she had the right to change another property owners’ use of their particular property. In this particular case, she expressed belief this will devalue
people’s property and will discourage expansion; and in this economy, the County needs as much expansion as possible and as many jobs as we can get. Chairman Collier asked for clarification
on whether Ms. Gott was suggesting not having a special use permit at all or having the special use permit apply only to new uses and not to existing industries. Melissa Gott said she
had grave concerns about even adding the special use permit for future projects because the the owner has purchased property with certain rights and the County would essentially be taking
away a property right from the owner after he had invested in a piece of property assuming certain rights. She also expressed concern about the unintended consequences of the amendment,
stating she was not comfortable with it and believed it was reactionary to a specific project rather than looking at the good of New Hanover County as a whole; therefore, at this point
in time she was not in support of the text amendment. Dan Hilla stated he agreed with Ms. Gott’s views of the amendment and commented that after 42 years, the ordinance should be reviewed;
however, three or four months was not enough time for the review. He felt it would be an injustice to those people to proceed because in his opinion there hadn’t been enough stakeholder
and landowner input; therefore, he was not in support of the amendment. Chairman Collier commented he was on the fence about the amendment. He stated he understood the property rights
issues; however, if a retail business was being considered, most people wouldn’t have a problem with the amendment. He felt a new industrial site should have at least the same oversight
as a new big box retail store. He stated his quandary was related to the existing industries and what would have happened a year ago if the county had implemented the amendment. He stated
he couldn’t determine what would have happened Progress Energy’s expansion to coal to natural gas. Chairman Collier noted he doesn’t completely oppose the amendment because he believes
there should be some oversight or review of light industrial and heavy industrial uses and the County requires it on many other uses so it is reasonable. He commented he was torn about
how the amendment should move forward, but was mainly concerned about the unintentional consequences that may be created by it. Chairman Collier shared there may need to be some additional
work on the amendment before it moves forward for consideration by the Commissioners. Vice Chairman Heath agreed that some oversight for the heavy industrial uses was appropriate for
the community, but he was uncomfortable with the possible impacts to existing uses and their future plans for expansion so he felt the amendment needed to be vetted further.
Page 13 of 18 Anthony Prinz stated he felt the current regulations were somewhat antiquated and the County needed to move forward with some modifications, but he was concerned about
only having a week to review the proposed amendment. Mr. Prinz preferred more time to review the proposed amendment in detail and suggested a work session for the Planning Board, staff,
industrial groups, WDI and other interested stakeholders to have some productive dialogue and gain a better understanding of the proposed amendment. Chris O’Keefe stated valuable input
had been received in recent days from the community and agreed that a work session would be beneficial in the next few weeks. Chairman Collier made a motion to continue Text Amendment
A-391 for thirty days and direct staff to organize a work session with the appropriate parties. Melissa Gott seconded the motion. The Planning Board voted 7-0 to continue Text Amendment
A-391 for thirty days and direct staff to organize a work session with the appropriate parties. Item 4: Text Amendment (A-393, 06/11) -Request by Staff to amend Section 53.5 of the County’s
Zoning Ordinance to clarify certain standards for establishing a Planned Development (PD) Zoning District. Chris O’Keefe stated the Planned Development District ordinance was created
in the mid-1980s to encourage mixed use and planned communities on large tracts of land and has been used five times since then for Landfall, Northchase, Blue Clay Farms, the River Lights
project, and most recently Rose Hill Landing. It requires a minimum acreage of 100 acres and has some locational requirements, including locations on thoroughfares, arterials and collector
streets, but it allows a great deal of flexibility within those areas. One of the main sections of the ordinance requires the developer to pay fees for school development and the provision
of fire services. It was recently been brought to staff’s attention that those fees have been challenged in other cities and perhaps the County’s ordinance would be illegal and subject
to a challenge. Staff reviewed some of those challenges and agreed that our ordinances may be vulnerable so those sections were removed from the ordinance. Staff also took the opportunity
to update some other areas of the ordinance. Most of the updates simply modernize the language and don’t change the process or the requirements. Mr. O’Keefe summarized the list of changes
to the ordinance, noting staff had updated language to incorporate the Metropolitan Planning Organization and the way roadways are classified now. He commented that substantial changes
were made in regard to rights-of-ways, stormwater utilities, and active recreation areas, which may be permitted within the interior 100 feet, loosening the requirements so developers
can include the listed items within the first 100 feet. The planned development district requires a 200 feet residential use area adjacent to other residential uses so staff increased
the amount of land uses permitted within the first 100 feet of the 200 feet fringe use area. area. There are also changes to the density bonus chart, including a collector street plan
and provisions for bike and pedestrian walkways within the planned development, which is much more similar to the types of projects staff is seeing now. Staff also increased the number
of points that go toward the creation of density if that requirement is satisfied. Points were added toward additional density for preservation of riparian buffers and
Page 14 of 18 incorporation of low impact development in the project. Staff also added additional ways to satisfy pathway requirements and reduced the income threshold to qualify for
points for providing housing units for lower income residents. Mr. O’Keefe provided additional detail on the item in the density credit chart related to the requirement for all residential
units to meet LEED or Healthy Built Home designation requirements to earn density credit. He reported staff had discussed it with BASE and had come to an agreement about how the language
could move forward. The language would read, “All residential units would be certified through LEED, ICC700 national green building standards, North Carolina Healthy Built Homes or Green
Globes.” This is a more comprehensive list of the agencies that currently establish energy efficient home classification. Mr. O’Keefe reported additional proposed changes include updating
the ordinance by inserting Cape Fear Public Utility Authority instead of New Hanover County Water & Sewer and removing the fee language for schools and fire. Staff has also made parking
standards more flexible by allowing developers to seek relief from those standards through the Technical Review Committee and clarified the final plan approval process, requiring the
plan to be approved by the Planning Director for consistency with the approved master plan and by the Technical Review Committee, who reviews projects much the same way as a subdivision
looking at lot breakdowns, which needs to be done very carefully and all the agencies need to be considered in that process. Mr. O’Keefe stated the primary reason staff had brought the
Planned Development amendment forward was to remove all items from the ordinance that were possibly illegal or at least subject to challenge. He offered to answer questions and presented
a parcel map reflecting areas for possible future planned development. Those parcels are located specifically in the northern part of the county, including north of Murrayville Road
and along Sidbury Road and Holly Shelter Road, which is currently zoned industrial, but could be rezoned to Planned Development. He noted the Highway 421 corridor also has many parcels
over 100 acres. Within the more developed areas, there are also several opportunities where large pieces of land may be able to take advantage of the Planned Development District. Melissa
Gott commented she had noticed the County requires a minimum of 100 acres for a planned development district, but in her research she found that the City of Wilmington only requires
a 5-acres minimum size for their mixed use districts. She wondered why the County had established a minimum size for the planned development district, instead of allowing a developer
to bring forward a project for review and decide whether it would be a cash flow project. Chris O’Keefe responded that Ms. Gott made a good point and there might be an argument that
the county should have a mixed use district for smaller types of projects; however, the County would generally steer someone toward the recently approved EDZD for smaller mixed use projects
especially in areas that have locational advantages to be more efficient. He explained the Planned Development district provides so much flexibility that it’s appropriate only for extremely
large parcels that may not be near any other amenities. The PD district was created to
Page 15 of 18 stand alone. Smaller mixed use projects would need to be located near other development and amenities, but planned developments are expected to provide all the amenities
for themselves. Ms. Gott expressed concern that a developer with a 75-acres parcel with the quality of Landfall for example would not be able to qualify for the Planned Development district.
Mr. O’Keefe stated that in the case of a 75-acres lot, staff would recommend the Exceptional Design Zoning District to the developer or would work with them to break the property up
into different districts to allow different uses. Ms. Gott asked if there was anything wrong with reducing the size requirement or if completely eliminating the size requirement would
hurt the County in some way. Mr. O’Keefe responded affirmatively that reducing the size requirement could hurt the County. He acknowledged there may be a need to create a district that
is more specific to projects smaller than 100 acres or in the 5-acres range, as there are certainly a large number of 5-acres sites in the county. He explained the Planned Development
District was specifically designed for large parcels and many requirements would need to be changed if the minimum acreage was reduced for those districts. Mr. O’Keefe stated one of
the items on the priority list for ordinance improvement includes the creation of a mixed use district so it will be proposed in the future; however, he didn’t think the Planned Development
ordinance was the appropriate venue for addressing that size mixed use project. Ms. Gott explained she thought it would be more practical to let the developer decide whether the shape
of his tract would permit it to qualify for this type of development. She said she was trying to understand the reason for requiring a 100-acres minimum site rather than something smaller,
but it sounded like staff was already working on that issue with a multi-use district. Anthony Prinz acknowledged he was also concerned with the 100-acres requirement because there aren’t
many parcels that size left in New Hanover County that are relatively developable. He noted many of the parcels shown on the map are quite wet. Mr. Prinz commented that the other changes
recommended to the ordinance need to happen and if the group as a whole was interested in reducing the minimum size requirement, it would probably be best to look at the ordinance again
at the next board meeting. Ms. Gott suggested the ordinance could also be reviewed during the work session if there was a mixed use district proposal, noting there seemed to be nothing
in between the EDZD and the Planned Development District to fill in the smaller parcels in the County. Mr. O’Keefe stated the EDZD currently seems to fill the smaller parcels and appears
to be the most popular district for developers. He said staff is aware of the need for a Mixed Use District in the county and will be addressing that issue in the future. He noted stated
would continue to make improvements to the EDZD as well.
Page 16 of 18 Chairman Collier opened the public hearing. Tyler Newman, representing BASE and the Wilmington-Cape Fear Home Builders Association, spoke in support of the Planned Development
District amendment. He stated staff had done an excellent job of addressing their concerns, which centered primarily around potentially illegal sections of the ordinance as it relates
to school sites, school fees, fire fees, and things of that nature and removing that language. He said in that respect, they support the amendment as it is written. As mentioned by Mr.
O’Keefe, there were a couple of lingering concerns or ideas to be considered. He felt Mr. O’Keefe adequately covered the density bonus item about being more inclusive of different types
of green certifications. With the changes to the building codes and energy codes at the state level, there will be certifications that are predicated on the code, such as Energy Star
or LEED. He said it would be beneficial to residential builders going forward to get credit for those certifications under this district. Mr. Newman also expressed concern about the
100-acres threshold for the Planned Development District, noting another challenge will be the potential incorporation of Castle Hayne, which will encompass a large portion of the parcel
map. He explained that not every project is exceptional and there is a need for a mixed use tool on the builder’s side so lowering the threshold or doing away with it completely as suggested
by Ms. Gott, might allow for some middle ground. He stated Ms. Gott was correct that the checks and balances would be in place when the developer went through the PD process. Ms. Gott
clarified her position about the 100-acres threshold, noting she had no objections to going forward with the proposed amendment and was satisfied that staff was already trying to address
that concern. Melissa Gott made a motion to recommend approval of Text Amendment A-393 amending Section 53.5, the Planned Development District. The motion was seconded by Anthony Prinz.
Chairman Collier asked for a clarification that the staff comments and the language recommended by BASE staff on the LEED green buildings was included in the motion. Ms. Gott accepted
the inclusion in her motion of the modified language, stating, “All residential units will be certified through LEED and IC700 National Green Building Standards, NC Healthy Built Homes,
or Green Globes.” Mr. Prinz also agreed to the inclusion of the modified language. The Planning Board voted 7-0 to recommend approval of Text Amendment A-393 amending Section 53.5, the
Planned Development District. Technical Review Committee Report (June) Sam Burgess provided the following report: The County’s Technical Review Committee (TRC) met once during the month
of June. One preliminary site plan (Performance Residential Development) was reviewed.
Page 17 of 18 Village at Motts Landing: Phase 1A The Village at Motts Landing is classified as Urban (provides continued intensive development with available services) on the County’s
Land Use Plan. The project is located near the 50 block of Sanders Road, north side. The developer for the project requested TRC to consider approval of twelve additional units (six
duplexes) on 5.5 acres of real estate located off Motts Village Road. Water service for the units will be served by Aqua of North Carolina and sewer through Cape Fear Public Utility
Authority (CFPUA). Access to the units will be through private roads. In a vote of 5-0, the TRC preliminarily approved the Village at Motts Landing: Phase 1A for twelve units. The following
conditions were attached to the plan: 1) No traffic calming devices, gates or obstructions will be allowed on the roads. 2) A modification to the stormwater and Sedimentation/Erosion
control permits will need to be adjusted during the construction design phase. Utilities in the road will need to be changed during the construction design phase. 3) A revised NCDOT
Driveway Permit will be required. 4) The display of the intersection radii and street centerline geometry will need to be added to the preliminary plan. 5) The addition of sidewalk along
Motts Forest Lane will need to be displayed along with the proper display of recreational space. 6) A new and updated General Development Plan for Phase 2 must be presented in the next
several months displaying access to the State Employees Credit Union (SECU) and Sycamore Grove subdivision to the north. Chairman Collier announced that
Mr. Prinz would be the Planning Board representative at the July 11, 2011 County Commissioners meeting. Mr. Barboza will be the representative at the August 1, 2011 County Commissioners
meeting. Chairman Collier asked staff if there were plans to begin an update of the 2006 CAMA Land Use Plan during the current year. Chris O’Keefe reported a meeting was held two weeks
prior with City of Wilmington staff to begin discussion of how to hopefully move forward together in creating a Joint Comprehensive CAMA Land Use Plan. He noted the County would attempt
to satisfy CAMA requirements through the comprehensive plan, but the goal would be to go beyond their focus, which is basically a natural resource plan. Both the City and County are
ready to proceed with this plan. The first plan of action will be to create a work plan and time frame of how to move forward. Staff will also be making an effort to bring forward long
range planning items to the board. Ms. Daughtridge reminded board members the election of officers would be held at the August meeting. She also reported the Commissioners had adopted
the Market Street Corridor Study and instructed the staff to move forward with the review of the Model Ordinance. A time frame
Page 18 of 18 has not yet been established for that process, but it will be another involved process coming forward in the near future. Ms. Daughtridge also reported there would be a
presentation at the August meeting related to the issue of signs on Carolina Beach Road. In 2001, a rule was approved that created a lot of nonconformity of free standing signs along
Carolina Beach Road and owners were given an amortization period of 10 years to come up to code. That amortization period will end in August. The Commissioners have asked the Planning
Board to review the issue and make a recommendation on how to proceed. Mr. O’Keefe stated the Chairman would have the opportunity to make a presentation regarding the Planning Board’s
activities at the August County Commissioners meeting and offered to assist with the presentation. With no further business, the meeting was adjourned at 7:28 p.m. Respectfully submitted,
_______________________________________ Chris O’Keefe, Planning & Inspections Director