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2012-03 March 1 2012 PBM Page 1 of 16 Minutes of the New Hanover County Planning Board March 1, 2012 The New Hanover County Planning Board met Thursday, March 1, 2012 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: Melissa Gott, Chairman Chris O’Keefe, Planning & Inspections Director Andy Heath, Vice Chairman Sam Burgess, Interim Planning Manager Troy Barboza Nicole Dreibelbis, Current Planner Richard Collier Sharon Huffman, Assistant County Attorney Dan Hilla Tamara Murphy Anthony Prinz Chairman Melissa Gott opened the meeting by welcoming the audience to the public hearing. Sam Burgess led the reciting of the Pledge of Allegiance. Chairman Gott reviewed the procedures for the meeting. Approval of the January Planning Board Meeting Minutes Richard Collier made a motion to approve the January 2012 Planning Board meeting minutes as drafted. Dan Hilla seconded the motion. The Planning Board voted 6-0 to approve the January 2012 Planning Board meeting minutes. (Anthony Prinz was not present for the vote.) Item 1: Rezoning Request (Z-915, 11/11)-Request by Clyde Holley and Pastor Kenny Chinn on behalf of Northside Baptist Church to rezone approximately 21.76 acres at 2501 North College Road from R-15 Medium-Density Residential to CD(B-2) Conditional Highway Business District. The parcel is identified as Transition and Conservation on the 2006 CAMA Land Classification Map. This item was continued from the November 3, 2011 and January 5, 2012 Planning Board meetings. Nicole Dreibelbis presented the staff summary and Conditional Use Findings of Fact and provided information pertaining to location, land classification, access, level of service and zoning. Ms. Dreibelbis also showed maps, aerials, and video recordings of the property and the surrounding area. Ms. Dreibelbis stated staff recommended approval of the rezoning request based on the likelihood that the existing adjacent commercial node will continue to experience population growth and commercial development, belief that complete implementation of the TIA Page 2 of 16 requirements will mitigate the impacts to the level of service along College Road, and the availability of public utilities to support a range of commercial development. Ms. Dreibelbis reported staff determined the Findings of Fact were positive; however, requested two conditions be placed on the Conditional Use Rezoning Permit: 1) All transportation improvements recommended in the final WMPO approval must be installed; and 2) any future plan of the church to incorporate a full-time school into the complex would be considered a change in use and would require an amendment to the Conditional Use site plan and may require a new TIA and additional transportation improvements. Tara Murphy, of the Wilmington Metropolitan Planning Organization, presented the Traffic Impact Analysis (TIA) recommendations for the proposal, explaining WMPO, NCDOT, and County representatives had reviewed the TIA and the subsequent revised TIA, which was not received in time for the January meeting. The TIA approval letter was issued on February 10th and revised on February 22nd, changing only a date in the letter. She explained the TIA recommendations were divided into two phases – the fast food restaurant and the church. Ms. Murphy noted the proposed site plan appeared to reflect the majority of the site specific items within the property boundaries and stated the other requirements would be detailed and addressed during the driveway permit process at NCDOT. Ms. Murphy explained the WMPO letter approved the traffic impact analysis and outlined the requirements associated with the approval based on intersection and site driveway locations. For the purposes of the hearing, Ms. Murphy divided the improvements into two phases: Phase I – improvements at the Northern Site Access and Main Site Access; and Phase II -improvements at North College Road/Murrayville Road/Bavarian Drive intersection and additional improvements at Main Site Access. At the request of Chairman Gott, Ms. Murphy clarified the locations of the recommended traffic improvements, affirming there will be a left turn lane off N. College Road into the fast food restaurant and explaining the purpose of the 100’ protected stem is to ensure there is not the potential for cars to stack back out onto NC 132. She explained that disconnecting the connection and making it a one-way loop internal to the site provided enough storage inside to take care of that requirement. When the site access was open through the parking lots, left turn movement was problematic and there was the potential for vehicles to stack back out on NC 132. Ms. Murphy reported the WMPO would not seek any improvements along Bavarian Lane at Owls Lane, Farley Road, or Red Hawk Road based on volume and counts and the analyses that were performed. In response to a question from Dan Hilla, Ms. Murphy confirmed Phase 2 did not include a school use on the site and stated the moment the use changed from the use described in the traffic impact analysis report, a church and fast food restaurant, the TIA approval letter would become null and void. Chris O’Keefe added that the conditional use permit would specify the uses also, requiring the church to appear before the Planning Board and County Commissioners to request another use. Page 3 of 16 Chairman Gott asked if the proposed improvements would result in no traffic backup on College Road. Ms. Murphy replied affirmatively and explained that was the intent of mitigating the traffic impact of the site. Mr. Prinz explained the intent was to mitigate the site traffic and noted the TIA was not done to solve all the problems, although in the most difficult locations that has to be done from time to time. He acknowledged that the NCDOT had made a lot of improvements recently to improve the capacity of College Road at Bavarian Lane and Murrayville Road so the performance there is good already, except in the peak hours when there is some queuing. Mr. Prinz stated he was very comfortable with the improvements put forward in the TIA and felt they had more than mitigated the site impacts for Phase I and II. He noted as mentioned by Mr. O’Keefe, if the church seeks a future conditional use permit modification, both the TIA and the NCDOT driveway permit must be amended providing multiple opportunities to address the traffic issue. Ms. Murphy stated that schools are usually reviewed by NCDOT in Raleigh and require queuing and stacking, items which haven’t been considered; therefore, a school is specifically excluded from the TIA approval letter. In regard to the queuing for the MacDonald’s, Anthony Prinz asked if the standard NCDOT number of eight vehicles was being required or if internal stacking for additional vehicles had been provided. He asked if the WMPO had taken into account the popularity of that type of establishment when it opens up and the problems it may cause on the main road. Ms. Murphy stated the WMPO based their recommendations on the standard NCDOT stacking requirements and noted the applicant had proposed a double lane on their most recent site plan. She stated it was not unusual to have high traffic for any new restaurant, grocery store, etc. so the WMPO doesn’t plan for that specifically. She expressed confidence the amount of storage in the turn lane, the protected stem and keeping the connection internal, but not close to the College Road right-of-way would mitigate any concern about the stacking queue for MacDonald’s. Chairman Gott opened the public hearing and recognized the applicant. Pastor Kenny Chinn of Northside Baptist Church, the applicant, thanked the staff and board members for their assistance throughout the rezoning process. He provided a brief explanation of the changes in the petition during the process. He stated the petition had changed from an open B-2 of the front 300 feet of their property to a Conditional B-2 request for the entire tract because the zoning line of the open B-2 cut through their property and created problems with setbacks and border lines that would prevent the property from being developed as planned. Pastor Chinn provided details of the proposed development of the property and addressed the concerns of neighbors concerning the potential traffic impacts on their properties. He explained the improvements required in the TIA approval letter would encourage the natural flow of traffic from the fast food restaurant in and out on Highway 132, rather than cutting through the church property and the adjacent neighborhood. He noted the church’s Phase I includes installing a new Page 4 of 16 sign, establishing a new entrance, and constructing a parking lot because of the loss of parking to the MacDonald’s. In a later phase, a new sanctuary would be built and the current sanctuary would be removed for new parking. In another phase, a new Adult Sunday School class building would be constructed, along with more parking. Pastor Chinn stated the church also owns an adjacent residence that is not included in the rezoning. In the future, the church will request that property be rezoned in order to meet the setback requirements for another building. In the final phase, the church will finish the building with a Children’s Sunday School Department. The future additions are dependent upon funding and have no specific date of completion. Pastor Chinn reported the church had contacted Bellsouth about realigning their driveway with the church driveway and Bellsouth has provided a letter stating they are agreeable to allowing the church to realign the Bellsouth driveway with the church’s driveway. The majority of the realignment will be in the easement. That information has been sent to NCDOT in Raleigh for consideration; however, the local NCDOT office felt the proposed realignment was a good idea. Pastor Chinn completed his presentation by thanking everyone for the assistance received during the process. During opposition, Leroy Peoples of 5607 and 5613 Bavarian Lane stated he was not opposed to the request, but was concerned about residents’ recourse if future traffic problems developed in the neighborhood. He asked if residents would come before the board to seek recourse or simply speak with the pastor of the church. Chairman Gott explained that if the conditional rezoning is approved, residents would not have an opportunity to appear before the Planning Board for recourse because the site plan if approved is laid out so that people can access Bavarian Lane from the MacDonald’s by zigzagging through the parking lot. She noted the applicant has tried to mitigate that situation by putting in a loop which forces traffic to travel back around the MacDonald’s parking lot around the queue of vehicles to get out, but there is nothing in the plan that will prevent cars from exiting onto Bavarian Lane or Owls Lane. During rebuttal, Pastor Chinn stated he was not a proponent of a future school on the site because he has found that you either have a good school and a so-so church or a great church and a so-so school. He commented that he realizes another pastor could come in later, but the church doesn’t have any plans for a school. The plan presented has been the church’s master plan for years and is what they really desire to achieve. No one spoke during opposition rebuttal. In response to a question from Anthony Prinz, Pastor Chinn stated the church wanted to be a good neighbor and agreed to work with them to mitigate cut-through traffic if it becomes a problem in the future. The church has already implemented some measures by installing speed bumps, etc. He noted while they want to provide good access to their site, they do not want a highway running through the church property. Mr. Prinz stated that during his recent site visit he had noticed traffic devices had already been installed at some locations, particularly where there is pedestrian activity, such as near the Page 5 of 16 playground, so it would be a reasonable counter measure if cut-through traffic became a problem. Chairman Gott closed the public hearing. Dan Hilla made a motion to recommend approval of the rezoning request with the recommendations from staff. Per direction from Assistant County Attorney Sharon Huffman, Chairman Gott explained the rezoning motion needed to be done first. Dan Hilla then made a motion to recommend approval of the rezoning. Anthony Prinz seconded the motion. The Planning Board voted 7-0 to recommend approval of Rezoning Request Z-915. Dan Hilla made a motion to recommend approval of the conditional use with the staff’s restrictions. Anthony Prinz seconded the motion. During discussion, Richard Collier asked for confirmation that the motion included the 100’ protected stem on the revised site plan that cuts off the connection. Mr. Prinz asked if it would require a modification of the application. Mr. O’Keefe and Chairman Gott confirmed the revised site plan dated 2/8/12 was included in the Planning Board package. The Planning Board voted 7-0 to recommend approval of the conditional use permit for Rezoning Request Z-915 with conditions recommended by staff. Item 2: Special Use Permit (S-519M, 03/12) – Request by Grace Patterson for a special use permit modification to increase the number of children in her child daycare from 9 to 12. The property is located in an R-15 Zoning District at 111 Cannon Road. The site is classified Resource Protection in the 2006 CAMA land use plan. Nicole Dreibelbis presented the staff preliminary Findings of Fact and provided information pertaining to location, land classification, access, level of service and zoning. Ms. Dreibelbis also showed maps, aerials, and video recordings of the property and the surrounding area. Ms. Dreibelbis reported the original order limited the daycare to nine children based on a petition filed by 17 neighbors. She reported the applicant had made contact with the adjacent neighbors prior to the submission of the modification modification request and as of the presentation no one had expressed opposition to the request. Ms. Dreibelbis stated staff determined the findings of fact were positive; however, would propose the original condition remain in effect requiring staggered drop-off and pick-up times so there are a maximum of two drop-offs or pick-ups within ten minutes intervals. Grace Patterson, the applicant, spoke in support of the request, explaining they were issued a special use permit for their daycare allowing nine children in 2004 and would like to increase the number of children from nine to twelve as allowed by the Division of Child Care Services and the State, as long as all requirements and square footage are met. She stated two parents with children in their care are currently pregnant so they are seeking to increase their daycare size in Page 6 of 16 order to accommodate those parents and in turn, help themselves financially. She stated they met all required conditions for a special use permit and added a 150 square foot addition a few years ago to the existing facility for a total of 450 square feet total. State law requires 25 square feet per child so there is ample space for each child and bathroom facilities. Ms. Patterson stated the adjacent neighbors she had spoken to about the proposal were fine with the idea and happy she had informed them prior to seeking an increase in her daycare size. The parents of children enrolled in their daycare include teachers, neighbors and law enforcement personnel from local schools, hospitals, and the police department. Drop-offs and pick-ups are staggered with two cars in the driveway at one time. Parents have ample space to turn around without backing into the right-of-way, which ensures safety. Ms. Patterson explained they keep their property in harmony with the neighborhood and most people don’t realize there is a daycare there. In conclusion, Ms. Patterson thanked the board for their consideration of the modification request. Chairman Gott asked if anyone would like to speak in support of the request. Lorrie Hales spoke in support of the request, stating she was expecting another child and has two children currently enrolled in the Patterson’s daycare facility. She stated her love of Ms. Patterson and her desire to keep her children at their daycare. Ms. Hales commented that the other expectant mother could not attend tonight’s meeting, but also has a child currently enrolled in Ms. Patterson’s daycare. She explained she and the other expectant mother are nurses in Wilmington and reiterated they would like to keep their children at the Patterson's facility. No one spoke in opposition to the request. Chairman Gott closed the public hearing. Anthony Prinz stated the increase from 9 children to 12 children would result in only one additional car because two mothers already drop off children at the Patterson’s daycare so the traffic impact would be very minimal. Chairman Gott noted she felt the original special use permit requirement of staggered drop-off and pick-up was very cumbersome because moms need to be at work at a certain time and need to drop off their kids. Ms. Patterson agreed it was very cumbersome, but the parents always work it out with them. She provides parents with a sheet of when they need to drop-off and pick-up their children. All of the children arrive between 7am and 8:30am and are picked up between 4pm and 5pm. When a third parent has arrived, they have driven on and allowed the other parents to pull out first. Chairman Gott thanked Ms. Patterson and made a suggestion that the board remove the requirement of staggered pick-up and drop-off. Anthony Prinz stated that having no one attend the meeting in opposition to the request is an indication that traffic congestion in and around the home is not a problem so he would agree with Chairman Gott’s recommendation to remove the requirement . Page 7 of 16 Chris O’Keefe stated that traffic congestion had not been an issue and staff had not received any complaints, but that could be because staggered drop-off and pick-up has occurred. Anthony Prinz commented parents also want to get in and out of the driveway easily and if they all arrive at the same time, that won’t be possible so he felt it was a fruitless condition and agreed with removing the condition from the permit. Vice Chairman Andy Heath commented he agreed, but asked how many parents the Patterson’s daycare served. Ms. Patterson stated the daycare currently serves seven parents. Vice Chairman Heath stated his only concern was that there are seven parents, one employee and the homeowners’ vehicles during that period of time with a total of 9-10 vehicles. Ms. Patterson stated that her husband was her only employee. Mr. Patterson explained that they were able to park both personal vehicles beside the daycare completely off the street during drop-off times. Chairman Gott stated she thought parents would exercise enough common sense not to stack seven vehicles in the driveway so it wasn’t necessary to require staggered drop-off and pick-up. Anthony Prinz made a motion to recommend approval of the special use permit to the Board of Commissioners with the condition for the staggered drop-off time eliminated from that recommendation. Richard Collier seconded the motion. The Planning Board voted 7-0 to recommend approval of Special Use Permit S-519M with the condition for staggered drop-off and pick-up removed from the recommendation. Item 3: Land Use Plan Amendment (LUP-14, 03/12) – Request by Rountree, Losee & Baldwin, LLP on behalf of Gordon Development Partners, LLC to amend the 2006 Wilmington-New Hanover County CAMA Plan Land Use Classification Map from “Wetland Resource Protection” to “Transition”. The subject properties are located at 8631, 8703, and 8723 Stephens Church Road, in the Kirkland Community. Sam Burgess presented the applicant’s request and staff summary/recommendation and provided information pertaining to location, land classification, access, level of service and zoning. He also showed maps, aerials, photos and videos of the property and the surrounding area. Mr. Burgess provided a brief overview of the CAMA land use plan process, noting the plan is a joint effort between the County and the City and has routinely been used as a blueprint to guide development decisions pertaining to rezoning and special use proposals and essentially deals with policy guidelines, including land use, the economy, community infrastructure, transportation, natural resources, and housing. Mr. Burgess reported the applicant’s purpose for the request was based upon: Page 8 of 16 1) A portion of the acreage shown on the Land Use map as being in the Transition class also fronts parcels from the elbow of Stephens Church Road northeast along both sides of the road. The balance of the acreage which includes the four parcels is classified as Wetland Resource Protection; and 2) The Wetland Resource Protection classification exists to protect the loss of wetland areas to development through strategies that focus on encouraging preservation of wetlands and wetland functions; however, the wetlands delineation approved by the U.S. Army Corps of Engineers indicates that no wetlands exist on the acreage. A follow-up letter from Troy Beasley, environmental scientist with Withers & Ravenel, also does not identify any hydrologic indicators of wetland hydrology and the soils (Leon and Murville) onsite were not saturated within the upper 12” of the soil surface. Mr. Burgess stated the applicant made a good case for seeking removal of the “Wetland Resource Protection” classification and replacing the classification with “Transition” on the four parcels consisting of 19.76 acres. He cited the U.S. Army Corps of Engineers letter releasing the designation of wetlands, the letter sent by Troy Beasley, and staff’s field survey after a 1” rain event which indicated the upper 12” of soil sampled in various areas did not indicate wetness and that the vegetation onsite consisted of long leaf pine and oak, but no Venus flytraps, pitcher plants or orchids. Mr. Burgess then reported that Policy 1.4 of the Land Use Plan is clear on the “protection, preservation, and wise use of our natural resources” based on the potentially adverse environmental impacts that a higher density development may bring and commented that protection is based on existing soil conditions, vegetation, conservation resources and protection of nearby aquifers. Mr. Burgess concluded with staff’s recommendation to retain the present Wetland Resource Protection designation to protect the identified resources, but overlay the Transition classification to authorize future development to qualify for increased density on the four parcels. Staff’s recommendation was based upon the letters submitted by the Corps of Engineers and the private consultant and staff’s observations during the field visits. Chairman Gott requested clarification on the current and requested classifications. Mr. Burgess explained staff’s recommendation to retain the existing Wetland Resource Protection classification and overlay the Transition classification to provide an opportunity to review for potential natural resources onsite if and when a site plan is submitted. Anthony Prinz asked if the County had ever placed an overlay of the Transition classification on an existing Wetland Resource Protection classification. Mr. Burgess responded an overlay of that type had not been done before to his knowledge. Chris O’Keefe stated it is done with the Natural Heritage Resource Protection classification, which actually functions as an overlay to the Transition area. He explained staff’s suggestion Page 9 of 16 that the area be treated in the same manner, noting the policies are not mutually exclusive and can operate side by side. While the County Zoning Ordinance requires a parcel to be classified as Transition in order to qualify for high density, it doesn’t prohibit property classified as Wetland Resource Protection from qualifying for high density. Staff felt there was an opportunity to protect wetlands that may not have been seen both onsite and off-site. The Wetland Resource Protection classification allows staff to consider potential impacts to off-site wetlands which are also important and staff would like to maintain the integrity of the Wetland Resource Protection classification because it is based on the National Wetland Inventory (NWI), which the State’s mapping program relies upon. He noted an edge of that mapping tool was followed to create the County’s Wetland Resource Protection classification and explained the policies identified are broad based in general and only require wetlands onsite to be identified and protected if possible. He commented whether there are or are not wetlands on the site is not important with that classification; however, it is important that the parcel become Transition so that no density limit is imposed in the zoning ordinance for it. Anthony Prinz clarified staff’s position, stating higher density may be appropriate here; however, if there are wetlands on the site, staff would like to go to greater lengths to protect them because they are closer to other wetlands. Chairman Gott expressed concern that the letters from the Corps of Engineers and Mr. Beasley and the staff site inspection didn’t reflect the existence of any of those conditions on the site. Mr. O’Keefe explained the wetlands classifications are complicated and scientific, and acknowledged that Mr. Burgess had confirmed via a site visit that the soils are dry; however, the area is in a 10-year drought period so it would be difficult to find wet soils now. In order to protect the integrity of the accepted wetland inventory, staff doesn’t see it as a negative to keep the boundary of the Wetland Resource Protection classification especially since the policies are not mutually exclusive and can be overlaid nicely to achieve the goals that both the petitioner, the Inventory and the Land Use Plan seek to achieve. Chairman Gott asked how they could be certain the boundary line is actually accurate when there are experts saying it is not. Mr. O’Keefe explained the boundary line isn’t based on the existence of wetlands, but is based on the existence of certain soils. The Class III soils found on site are generally wet soils. When determining the boundary line, soils and vegetation are considered. He noted the petitioner was taking the appropriate steps the County would like to see followed. Chairman Gott asked if the removal of the Wetland Resource Protection classification would result in the County losing a very important control when a project came through the review process. Mr. O’Keefe responded perhaps; however, the site plan process will not be affected at all if no wetlands would be impacted. He noted the reason the area would be eligible to become Transition because there is a potential for water and sewer to be extended into the area because it Page 10 of 16 is available nearby. The opportunity exists to extend urban services into the area and perhaps the wetland resource has been addressed convincingly enough to let it go one way or another. Richard Collier asked what other environmental rules are involved in the Wetland Resource overlay. He noted stormwater is reviewed under Watershed Resource Protection and asked if the process was similar. Mr. Burgess stated that stormwater would be reviewed, in addition to the County’s Conservation Overlay district. He noted there was a large amount of Savannah onsite, which is considered as a natural resource and deemed valuable that would need to be reviewed during the site plan review process, but based on a cursory visit, there wasn’t anything available. Dan Hilla asked if it was generally accepted that the U.S. Army Corps of Engineers has the final word on whether there are wetlands on any site. Mr. Burgess confirmed the U.S. Army Corps of Engineers does make the final determination regarding wetlands on on a site. Mr. O’Keefe clarified the U.S. Army Corps of Engineers makes the final determination on regulated wetlands. Mr. Collier agreed, but commented the discussion was centered on overlay districts. Those things we have in the Watershed Resource, the Wetland Protection, the CAMA maps, and the flood maps, noting the One Hundred Year flood line is an empirical line on a map that is written in stone until proven otherwise. He explained Mr. O’Keefe’s contention that the County does not want to give up the ability to determine and provide for buffer protections for wetlands if found on the parcels, while accommodating higher density in a Transition designation. The map/approval expires in October 2012 and would need to be extended or a new delineation would need to be done. If the Wetland Resource Protection designation limits the impervious surface to 25%, additional environmental items will be required, for example, low impact development. He stated if the County gave up the Wetland Resource Protection designation in this case, they would give up those requirements also. If the property is designated Transition and the high density option is taken, the County’s limitations are reduced. Mr. Collier stated while he doesn’t disagree that the Transition is in the right place in the right location, he did not want to give up some of that low-impact type of work given that we know there are enough environmental resources in the area particularly as you proceed north. In his opinion, whether the area is wet or not is not even a question; the question is whether or not we want to leave in place some of those environmental protections. Mr. Burgess commented there appears to be a thread of consistency between the private consultant’s soil analysis, the U.S. Army Corps of Engineers letter issued in 2006 and the cursory field exam conducted by staff, but the County would still like to retain the Wetland Resource Protection classification. Chairman Gott opened the public hearing. Page 11 of 16 Steve Coggins, counsel for the applicant Gordon Road Development, spoke in support of the request. He thanked Mr. Burgess for the overview of the CAMA Land Use process, noting it is an extra layer that exists in this particular case because of a unique situation in the New Hanover County Zoning Ordinance. He explained there is one district alone in the ordinance whose existence entirely depends upon either all or entirely in a particular classification called Transition under the CAMA Land Use Plan. Mr. Coggins emphasized that the original Corps of Engineers wetland delineation conducted more than six years ago was done before the determination that there was a dry period. It was done approximately 5-6 years after the 500 year flood, Hurricane Floyd, when the property was deemed to be dry. He reported two weeks prior, the applicant had hired the same scientist who prepared the analysis for the Corps of Engineers to prepare another survey. The finding of the new survey is that the property is dry. The new survey letter was included in the packet provided by the applicant so board members have the most up-to-date information possible. Mr. Coggins stated the definition of a wetland resource area under the CAMA Land Use Plan is simply that the property is wet. If the property is not wet, it is not supposed to be in the Wetland Resource Protection area. Fortunately, the County’s CAMA Land Use Plan states that the CAMA Land Classification Maps are not site specific, but are general and do not purport that because an area is designated “Wetland Resource” anyone ever walked the property to determine the presence of wetlands. He noted the tract located southwest of the subject property, which bulges out along the Highway 17 corridor, is designated Transition and that designation goes all the way up the corridor. Mr. Coggins stated he was unsure why the tract southwest of their tract is deemed Transition and their tract located immediately northeast is not when it is in fact dry. He commented fortunately the CAMA Land Use Plan provides the flexibility for modification of the map in the appropriate case and CAMA regulations also allow for map amendments because they are very general documents. Mr. Coggins explained because their property was subject to both the classic zoning map, which applies 99% of the time, and the CAMA Land Use Land Classification Map, they were required to first seek an amendment to the CAMA Land Use Plan and then that alone will take care of the underlying zoning text that applies in their case. Mr. Coggins stated in terms of consistency he couldn’t speak to the ordinance that addresses the historical district, but he understood the county’s proposal was to have Wetland Resource Protection on property that is not wet and overlay it with Transition. He cited Section 69.4(3)(D)2 of the New Hanover County Zoning Ordinances, which states, “Each high density development shall be located either totally or primarily in areas classified Urban Transition in the Wilmington-New Hanover Land Use Plan” and questioned the effect if the property is instead classified as Wetland Resource Protection with an overlay of Transition and whether that would be under the statute totally or primarily in an area that is classified as Urban Transition. He noted classification is done solely by the Coastal Resource Commission. While the Land Use Plan is proposed by New Hanover County and the City of Wilmington, the plan is not a plan until it is approved or modified by the Coastal Resource Commission. Mr. Coggins expressed concern that placing a recommendation that the map have an overlay on it would be problematic because he couldn’t find a single reference in the Coastal Area Management Act or in the land use plan regulations regarding the overlaying of land classification maps. He stated if there is no authority to overlay in the Land Use Plan and if the board doesn’t have the authority to overlay in the underlying zoning ordinance, the situation cries for simplicity. Page 12 of 16 Mr. Coggins stated the applicant was only requesting the removal of the Wetland Resource Protection designation on the clearly dry portion of their property because it is dry. He noted if there is a pocket of precious wetland resource on the property, there are significant layers of regulation in place that would prohibit the alteration or modification of those wetlands. He mentioned that the Conservation Overlay District is available, as are the state and federal regulatory authorities as to the presence of any wetlands. He commented the obligation would exist to provide proof that there is no wetland resource onsite regardless of whether the property is classified as Wetland Resource. Mr. Coggins reported after examining the exhaustive ordinances on protection of wetland species and characteristics in addition to the state regulations, he could not discern a single additional tool that would be provided to New Hanover County to protect that particular resource by providing a wetland overlay on this particular property. If anything, it would add to the confusion by imposing an overlay not found anywhere in the CAMA regulations or in the county ordinances. He commented there was no intent in the regulations for property to be labeled as wetlands if it was dry; it was simply a gross application with no rational basis. He confirmed the applicant agreed with staff’s presentation that a powerful case had been made that the property is dry and couldn’t be developed going forward in the formal processes of zoning if it was anything other than that in this particular area. He agreed protections must be observed, but noted there was room for simplicity in their case to treat that which is wet as wet and that which is dry as dry. Mr. Coggins completed his presentation by asking the board to accept the applicant’s petition to re-designate the property on the map as Transition as opposed to Wetland Resource. Adam Sosne, Managing Member of Gordon Road Development, owner of the subject parcels, pointed out they had recently acquired the property, which had a prior O&I zoned project in place under an older permit issued in 2002. The special use permit expired and in the interim, the County adopted the CAMA Land Use Plan. He referred to the wetlands delineation and certified map provided to them by the U.S. Army Corps of Engineers and noted they weren’t sure how the line ended up in its current location because the prior approved O&I project was located across the middle of the area now designated Wetlands Resource Protection. He commented that the designation was inconsistent with both the O&I zoned project approved by the County Commissioners and the wetlands delineation certified by the U.S. Army Corps of Engineers stating there are no wetlands. Mr. Coggins stated for the record Case # Z-734, rezoning the tract from R-15 to Conditional Use O&I, was approved on March 11, 2002 and the permit was extended for another two years to 2006. The CAMA Land Use Plan was adopted in 2006. Chairman Gott asked Mr. Coggins to provide the current zoning of the property since the permit had expired. Mr. Coggins provided his opinion that given the terms of the conditional use district zoning, upon expiration of the permit the parcel reverted back to its original state of R-15 zoning. Mr. O’Keefe stated the ordinance requires a specific action to occur before the property is rezoned or unzoned back to its original zoning district. That action has not taken place; therefore, the property is still zoned as CD O&I even though the original site plan has expired. Page 13 of 16 Chairman Gott asked if the property would come in by right as R-15 if the board recommended the property be designated Transition since the property was originally zoned R-15. Mr. O’Keefe stated the parcel is still zoned CD O&I; however, the classification of Transition or Wetlands Resource Protection doesn’t have any bearing on the zoning of the project. He noted the petitioner would likely apply for a rezoning unless they opted to proceed with the O&I project originally approved in 2002. No one spoke during opposition. Chairman Gott closed the public hearing. Anthony Prinz asked for clarification from legal counsel regarding the current zoning of the property. County Attorney Sharon Huffman agreed with Mr. O’Keefe that the ordinance does require a specific action to revert back to the original zoning. Since that action has not occurred, technically the property is still zoned O&I. While unsure if it would make a difference when the applicant requested a rezoning, she commented it would be important to the Commissioners, who will make the ultimate decision on the issuance of the rezoning and probable conditional use permit, to have the full history of the parcel because they are more inclined to rezone from O&I to High Density than from Residential to High Density. Chairman Gott asked if designating the property Wetland Resource with an overlay of Transition would be problematic when the applicant came in for a rezoning given the ordinance requires the property to be Transition. Ms. Huffman asked staff if the Coastal Resource Commission was bound by the Commissioners’ recommendation or could in their wisdom change the property to Transition without the Wetland Resource overlay. Mr. O’Keefe responded that the CRC was bound to consider the adoption of what is recommended by the County Commissioners; however, he believed the CRC could amend the recommendation. Mr. Coggins stated the CRC would be responding to the application submitted by New Hanover County. The applicant petitioned New Hanover County to make the application. He expressed concern about the effect of New Hanover County applying for a designation with an overlay that doesn’t exist in the regulations or in the Coastal Area Management Act probably because it recognizes the ample protections that already exist with respect to the preservation of the wetland type resources. Mr. Coggins reported he had not found a single instance of a land classification map that overlapped and for that reason, would ask the County to apply for a designation that did not cause concern as to whether or not they have the power to act on an application requesting such a designation. Page 14 of 16 Chairman Gott asked staff to explain what the County would lose by giving the property only a Transition classification. Mr. O’Keefe explained the Wetland Resource Protection classification was developed based on the national wetland inventory and in that part of the county it covers a very large area with many pockets of wetlands. He pointed out the site is 19+ acres so Mr. Burgess’ limited soil samples don’t conclusively determine there are no small areas of wetlands on the site. The Corps of Engineers determination looks in more depth at specific types of wetlands so we can be confident of what the Corps wetlands determination indicates. The classification covers a large area and there are probably many small parcels within that area where we could determine there are no wetlands, but should someone be allowed to build an apartment complex on those areas if the parcel next to it has a wetland on it? Wetlands function to filter stormwater and provide habitat for lots of flora and fauna. The policies that were developed through an intensive public participation process that went through the Planning Board and the Commissioners were deemed to be protective of wetlands on properties that were adjacent. In fact the Wetland Resource Protection classification speaks to the fact that protection is needed for loss of wetlands to development whether the loss is due to a drainage system placed on one parcel that impacts a parcel next to it or for any other reason. He commented because that is a significant policy it would be a precedent setting move to say just because one parcel in this large category perhaps doesn’t have wetlands on it, we are going to change it. He explained staff felt the subject property is a classic example of a parcel that walks the line as an appropriate place to extend the Transition classification because the parcel has urban services nearby, isn’t on a major or minor arterial, and doesn’t currently have water and sewer, but is also in an area where there may be wetlands on or near the property which would need to be protected by Wetland Resource. Chairman Gott stated it seemed to be an issue of miss-mapping because the adjacent property is not designated as wetlands, particularly given the fact that the Corps of Engineers, the experts in this field, is saying there are no wetlands on the site. She explained because she knows the project will also go through the TRC, the Planning Board, and the County Commissioners and be reviewed by other agencies, she didn’t see how any significant protection would be added by placing an overlay on the site, which may or may not be valid when sent for approved. Mr. O’Keefe responded that the boundary is located there because that is where urban services were in 2006, rather than where the wetland line was then. The wetland line probably ran underneath the area, but the urban services were already in place so it was deemed Transition because clearly the infrastructure was there to serve that area. Chairman Gott stated she thought services were just reaching the area now and asked for clarification of the location of nearby services in 2006 which allowed the adjacent property to be deemed Transition. She wondered why the County didn’t seem to trust the Corps of Engineers determination in this case when they had always trusted the Corps of Engineers in the past. Mr. O’Keefe confirmed the Transition area located north of the proposal was provided water and sewer by New Hanover County as part of a community development block grant project, but services did not extend to the subject property. He affirmed the County trusts the Corps of Page 15 of 16 Engineers, which determines a certain type of wetland, but there are other important types of wetlands potentially located just off the subject property that haven’t been explored yet. Mr. O’Keefe acknowledged the struggle for staff, who originally felt the request made perfect sense because infrastructure will be there, but also considered the policies created to protect that resource and ultimately determined it was important to maintain the integrity of the Wetland Resource Protection. Tamara Murphy commented that there may not be wetlands on this particular site, but Wetland Resource Protection protects not only the wetlands on this site, but also the other resources that contribute to wetlands on other nearby sites so that may be a reason to keep that designation. Steve Coggins respectfully suggested the controls that already exist for development are in place to ensure that impacts on a particular site would not impact on adjacent properties and the tools are found throughout the ordinances. He stated there was no difference between their site and the adjacent sites and pointed out the bulging area on the map he referred to earlier was classified Transition on the 1999 map. He noted the 2002 proposed high density plan was required to provide assurances that particular types of runoff would not harm adjacent tracts, a requirement still in place in the ordinances today; therefore, he didn’t see any additional tools that would be provided by the overlay. Dan Hilla commented with the amount of regulation already in place and the fact that the letter from the Corps of Engineers will expire in October so the applicant will have to go through the process again, it made perfect sense to have the property transition to Transition, particularly given the Corps of Engineers determination that there are no wetlands on the property. Anthony Prinz admitted he was less concerned about the Wetlands Resource Protection and more concerned about the conversion to Transition and the impact that will have on the available densities that will be allowed on the site both with the existing O&I and with a higher density residential if that were to occur. Chris O’Keefe responded without the Transition designation, density would be capped at 2.5 units per acre for the majority of the site. With the Transition classification, an R-15 can go up to 10.2 units per acre with a special use permit for high density development. As an O&I, it would also be 10.2 units per acre, but it is a conditional O&I. Rezoning to R-10 or EDZD could result in 20-21 units per acre depending upon how many credits they accrue. He noted the parcel is a well situated parcel on which to gain density credits because of its close proximity to the Lowe’s Home Improvement Center and many shops and establishments. He pointed out the land use classification wouldn’t matter with an Exceptional Design Zoning District because it allows one to exceed 2.5 units per acre. Anthony Prinz commented he felt the Commissioners had appointed him to bring the transportation perspective to the board and based on Mr. O’Keefe’s figures, if the property becomes Transition and then R-15, it would result in approximately 1,500 trips per day. He noted the applicant is really asking for an increase in density and stated concern that the transportation network in the area is in no way able to handle that volume of traffic especially if Page 16 of 16 there is the potential development of the other undeveloped parcels in that area. The property is directly adjacent to an interchange at the end of a dead end road and the intersection at the base of the interchange where this parcel would egress and ingress with Market Street is by far one of the worst designed intersections in that area crammed directly against the road with multiple conflict points next to US 17. From that perspective, he had difficulty understanding why it would be a Transition area even if water and sewer will be available because the area couldn’t handle the future traffic congestion without significant modifications. Mr. Prinz commented most likely the O&I rezoning occurred prior to the interchange being constructed and was less appealing after the site access was significantly modified by the interchange construction. Chairman Gott stated she understood his concerns, but they could only speculate on what project may or may not be proposed and what the property may be able to sustain; therefore, she felt comfortable giving the applicant the Transition designation based upon the Corps of Engineers letter and will judge future projects on the merits at that time. Mr. Prinz reiterated he was more concerned about the Transition designation than the Wetlands Resource Protection and didn’t feel he could support Transition at this point in time, but was flexible on the Wetlands Resources Protection based upon the information from the Corps of Engineers. Dan Hilla made a motion to recommend approval for Transition without the overlay district. Richard Collier seconded the motion. The Planning Board voted 6-1 to recommend approval of LUP-14 for Transition designation without the overlay district. Anthony Prinz voted against approval. Technical Review Committee Report (January/February) Sam Burgess reported the County’s Technical Review Committee met in special session on Friday, February 24, 2012 to discuss the Traffic Calming Devices amendment. The latest proposal has been simplified from the original proposal put forth a year ago and will be discussed in more depth at the March 2, 2012 Planning Board work session. Chairman Gott announced the Planning Board would hold a work session on Friday, March 2, 2012, at 9:00 a.m. in the Finance Conference Room 500 of the New Hanover County Government Center. Anthony Prinz apologized for his late arrival, citing heavy traffic on his drive from Jacksonville. Chris O’Keefe invited board members to attend a luncheon hosted by Wilmington Downtown, Inc. on March 7, 2012. The guest speaker will be Mitch Silver, the Planning Director for the City of Raleigh and the current American Planning Association President, who is a dynamic speaker and has accomplished exemplary things in the City of Raleigh. The County funds Wilmington Downtown, Inc. and has a table for the luncheon. Chairman Gott will attend. Chairman Gott adjourned the meeting at 7:00 p.m.