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2013-12 Dec 5 2013 PBM Page 1 of 18 Minutes of the New Hanover County Planning Board December 5, 2013 The New Hanover County Planning Board met Thursday, December 5, 2013 at 6:00 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 Shawn Ralston, Planning Manager Vice Chairman Dan Hilla Ken Vafier, Current Planning & Zoning Supervisor Andy Heath Sam Burgess, Senior Planner Lisa Mesler Ben Andrea, Current Planner Tamara Murphy Sharon Huffman, Deputy County Attorney Ted Shipley, III David Weaver 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 Richard Collier reviewed the procedures for the meeting. Approval of the November 2013 Planning Board Meeting Minutes Vice Chairman Dan Hilla made a motion to adopt the November Planning Board minutes as drafted. Andy Heath seconded the motion. The Planning Board voted 7-0 to approve the November 7, 2013 Planning Board meeting minutes. Item 1: Special Use Permit Request (S-616, 12/13) – Request by Lorraine Collura to operate a Child Care Center in a Residence located at 1220 Potomac Court. The subject property is currently zoned R-15, Residential District, and classified as Urban according to the 2006 CAMA Land Use Plan. Ben Andrea presented the staff summary and provided information pertaining to location, land classification, access, level of service and zoning. Mr. Andrea also showed maps, aerials, video, and photographs of the property and the surrounding area. Staff Summary  Lorraine Collura, applicant, on behalf of owners Lorraine and Michael Collura, is requesting a Special Use Permit for a Child Care Center in their residence at 1220 Potomac Court. Page 2 of 18  The zoning ordinance defines Child Care Center as an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care, unless excluded by NCGS 110-86(2).  The applicant is requesting capacity for 12 preschool-age children, fitting the definition of Child Care Center.  The subject property consists of 0.41 acres and is located on Potomac Court, in the northeastern portion of the county in the Brittany Lakes subdivision off of Murrayville Road.  The subject site is classified as Urban according to the 2006 Wilmington-New Hanover County Joint CAMA Land Use Plan. The Urban land use classification is intended to provide for continued intensive development and redevelopment of existing urban areas. The proposal is consistent with the Urban land use classification and not contradictory to any policies within the Land Use Plan.  The subject property is zoned R-15 and the surrounding zoning is all R-15.  Child Care Centers are permitted by Special Use Permit in the R-15 zoning district.  The site has direct access to Potomac Court via an existing driveway.  The WMPO conducted a traffic count on Potomac Court on December 2 and 3rd in the vicinity of the site. Based on the count, Potomac Court had an average volume of 724 vehicles per day. With an estimated capacity of the roadway at 9600 vehicles per day, Potomac Court has a level of service of A and a volume to capacity ratio of 0.08.  Based on the capacity of 12 children, two off-street parking spaces are required and the applicant has indicated that the existing driveway can accommodate those two spaces for drop off and pick up of children.  The subject property is not located within any flood or archaeological areas and dose not hose any CAMA Areas of Environmental Concern.  The applicant intends to convert the existing garage area for use as the child care center, so the proposed parking is very close to the future entrance of the facility.  The Child Care Center will be subject to review and permitting from the NC Department of Health and Human Services Division of Child Development and Early Education.  This agency has specific standards for Child Care Centers, and the applicant is proposing to meet or exceed those standards, including having more than adequately sized indoor and outdoor areas, and a higher staff-to-child ratio than the minimum requirement.  Aside from some visual indicators for the parking area, the only other exterior modification proposed is a fence in the rear yard, similar in style to fencing that may be seen in other residential yards.  Notices of tonight’s public hearing were sent to 58 adjacent property owners and a sign was posted on the property on November 22.  Staff received one telephone inquiry about the request on the day of the public hearing. The caller did express some opposition to the request. In conclusion, Mr. Andrea stated the special use permit request is consistent with the county’s zoning ordinance and the CAMA Land Use Plan; therefore, staff recommends approval of the request. He offered to address questions from the board. Page 3 of 18 Chairman Richard Collier asked if board members had any questions for staff. He asked if the caller in opposition to the request had offered any comments. Mr. Andrea reported the caller expressed concerns regarding property values and disturbance of the caller’s peace during the day. Chairman Collier opened the public hearing and recognized the applicant. Lorraine Collura, the applicant, of 1220 Potomac Court, stated Mr. Andrea had presented her proposal very well. She commented was very excited about working with children, she has been a parent for twenty years, working with children much of the time. She also has a new grandchild and would love to have this opportunity. She stated she would be happy to address any concerns. No one else from the public spoke in support of the special use permit modification. Chairman Collier opened the opposition portion of the hearing. Brian Flynn of 1212 Potomac Court spoke in opposition of the request because he felt it is not the appropriate location for a business. The photos make it appear very urban, but this is a residential neighborhood and the houses are very close together. He originally thought it was his next door neighbor, who currently babysits four children. He noted it is very noisy all day long because children play. When he went over to apologize to his next door neighbor for opposing the special use permit request, he learned the request was from another neighbor two houses down from his residence. He expressed concerns about the additional noise of twelve children in a residential neighborhood. He noted he has children and grandchildren and actually loves children, but they are noisy. He stated it was difficult to oppose the request, but he felt it was necessary. Mr. Flynn commented in regard to the letters of support from other neighbors, it is really difficult because you want to ensure peace in your neighborhood and support your neighbors and not crush their dreams. He felt the business should be located in a proper place of business and not in a residential neighborhood. Mr. Flynn reiterated his concerns about the noise during the day, noting he also felt the property values would decline quite a bit for the neighbors. Chairman Collier closed the public hearing portion of the meeting and opened the rebuttal portion of the hearing. Ms. Collura commented her next door neighbor operates a child care center in her home and had provided written support for the proposal. Ms. Collura said she wasn’t aware that her neighbor operated a daycare until she was doing it and she has lived in the neighborhood for 22 years. She also noted there is an in-home business four houses down the street that has operated for the last 22 years. She explained in regard to noise level, all of the children will be pre-school age children. She commented that her next door neighbor’s playground area is located next to Mr. Flynn’s property so he would hear them. Since her play area will be one property over and away from the property line, she didn’t anticipate it would be a disturbance. She commented she had spoken to several neighbors and told them they didn’t need to attend tonight’s meeting to support her request. She does have written letters of support from the next door neighbors located on either side of her property. Page 4 of 18 Chairman Collier asked Mr. Flynn if he would like to make any additional comments during the rebuttal period. Mr. Flynn commented that two wrongs don’t make a right. If there are additional ones, he doesn’t know if they have been approved or if there are being run illegally. He stated there is nobody to manage it, so if we do allow a property that allows up to twelve children, what’s to say that gray doesn’t come into play and then they have 14, then 16, then 18 kids and as business booms, we then have 24 children. He reiterated he doesn’t feel this is the right place for this business. Chairman Collier closed the public hearing and entertained discussion by the board. Ted Shipley stated he agreed with the opposition because he wouldn’t want this in his neighborhood either. Commented he understands Mr. Flynn’s concerns simply from a traffic standpoint, but it appeared the applicant had complied with the laws and met the required obligations for a special use permit. He noted because we are a nation of laws and the applicant has complied with the ordinance, he saw no reason to oppose the application. If there needs to be a discussion about whether we should allow this use in the future, we should revise the ordinance accordingly. Vice Chair Dan Hilla commented although he sympathized with the opposing neighbor, he felt the need for this type of service in our community is great; therefore, he is in favor of the applicant. David Weaver inquired how close Mr. Flynn lives to the applicant’s residence. Lisa Mesler commented she also feels there is a huge need for this type of facility so she is in support of Ms. Collura’s application. Tamara Murphy stated agreement with her fellow board members in support of approval of the special use permit. Andy Heath stated he would favor approval as well. Chairman Collier noted an earlier reference to installation of a fence on the site and asked Ms. Collura to elaborate. He expressed concern about the pools located on either side of her property particularly given the fact the children would be pre-school aged. Ms. Collura explained perimeter fencing is already in place, but she would be engaging a professional to install fencing particularly designed for day care settings. Chairman Collier agreed the law is in Ms. Collura’s favor and the service is needed. He noted her passion for the endeavor and the benefit of her daughter, an elementary school teacher, joining her in the business. Page 5 of 18 Chairman Collier made the following statement to the applicant, “A special use permit which is denied may only be resubmitted at the discretion of the Planning Director. You may continue this matter or you may go forward with the vote”. He asked Ms. Collura if she would like to proceed with a vote on the matter or continue/postpone the item. Ms. Collura stated she would like to continue to a vote on the special use permit. Chairman Collier then entertained a motion from the board on Special Use Permit Request S- 616. Tamara Murphy made a motion to recommend granting the permit based on all findings being positive and in accordance with Section 71 of the New Hanover County Zoning Ordinance and the CAMA Land Use Plan. David Weaver seconded the motion. The Planning Board voted 7-0 to recommend approval of Special Use Permit S-616. Chairman Collier announced the special use permit request would move forward for consideration by the Board of County Commissioners in January. Item 2: Rezoning and PD Master Plan Modification Request (Z-880M, 12/13) - Request by Burrows Smith for River Bluffs Development Corporation to modify a previously approved PD, which includes the rezoning of an additional 11 acres located at the west end of Chair Road from R-20, Residential District to PD, Planned Development District, and to amend the previously approved master plan to include a commercial marina. The subject property is classified as Wetland Resource Protection, Natural Heritage Resource Protection, Aquifer Resource Protection, and Conservation Land Classifications according to the 2006 CAMA Land Use Plan. Ken Vafier presented the staff summary and provided information pertaining to location, land classification, access, level of service and zoning. Mr. Vafier also showed maps, aerials, video, and photographs of the property and the surrounding area. Staff Summary  This proposal is a rezoning of an additional 11.3 acres from R-20 to PD, as well as consideration of an amendment to the previously approved master plan for River Bluffs, located in the northwestern portion of New Hanover County. The rezoning and amendment are ultimately to accommodate the addition of a commercial marina within the project.  River Bluffs is located at the western end of Chair Road, extending west adjacent to the Cape Fear River and encompassing about 340 total acres.  The master plan for the project was initially approved in March 2008 with a rezoning of 236 acres from R-20 to PD; in September of 2010 an additional 93 acres was rezoned to PD and added to the master plan.  The petitioner is now requesting an additional 11.3 acres be rezoned to PD to accommodate a commercial marina in the southeastern corner of the site, as well as a boat ramp in the northwestern corner, neither of which was shown on either previous plan.  Staff previously made a determination that the addition of the commercial marina would not constitute a minor change that can be approved administratively per section 54 of the NHC Zoning Ordinance. Thus, we are here tonight to request the zoning change and amendment. Page 6 of 18  The entire project contains 3 resource protection areas as well as conservation area. However, the specific areas where the changes are proposed are limited to conservation areas and are consistent with this classification as a water dependent use designed to limit impacts to the resources.  New proposed PD zoning area will extend from the bank of the shoreline to the centerline of the Cape Fear River.  The proposal consists of the addition of the commercial marina and associated parking area, as well as an improved boat ramp as indicated in the locations shown on the aerial image. Advancing toward the site plan, the marina will be located on 1.82 acres and is accessed via Angus Drive, a private drive off Chair Road, which will extend throughout the development to serve as the main thoroughfare. The ramp is located on a 0.33 acre site in the northwestern portion of the site and will be accessed via White Cliffs Drive, also a private drive off Chair Road.  A CAMA Major permit has been issued for the proposed commercial marina and ramp, limiting the slips to 143 and containing numerous conditions to address impacts to resources and water quality.  93 adjacent property owners were notified of this request, and a community meeting was held in which 6 attendees discussed the proposal; however, no changes to the plan were necessary as a result of the meeting. Staff did not field any inquiries from the public regarding the request. Mr. Vafier stated Staff had found the proposal to be consistent with conservation area uses allowed, and therefore, recommended approval of request. He concluded the staff summary and offered to answer questions from the board. Chairman Collier opened the public hearing and recognized the applicant. Matt Nichols, an attorney with Shanklin & Nichols, spoke on behalf of the applicant and property owner/developer, River Bluffs Development Corporation. He noted the presence of Burrows Smith, the developer’s representative; and the project engineer, John Tunstall of Norris & Tunstall Engineers. Mr. Nichols has been involved with the project since it came before the board in 2007-2008 as a PD rezoning, and was also involved in 2010 when an additional 92 acres was added to the PD district. He commented this is one of the best, well-designed, larger projects he has even seen. A great deal of careful planning has gone into the project, which has been shepherded through the process by the county staff and received input from the Planning Board and the County Commissioners. He pointed out in these economic times, a lot of projects have been approved, but this project is actually moving forward and is being built in a very careful and high quality manner. Mr. Nichols stated they are seeking to extend the PD line to the center of the river to accommodate the commercial marina, which was probably an oversight when the 92 acres was added in 2010. This will allow the applicant to move forward with the commercial marina and the boat ramp on the northern riparian area for the boat ramp modification. He pointed out the CAMA Major Permit has already been issued for the marina, which is unusual. That permit has been reviewed by many agencies and has also gone through consistency analysis for the CAMA Page 7 of 18 Land Use Plan and the DCM regulations. Mr. Nichols thanked the board for consideration of the request and offered to answer questions. No one else from the public spoke in support of or in opposition to the request. Chairman Collier closed the public hearing and entertained questions from the board. Tamara Murphy expressed concern about the ability of large vehicles to make deliveries to the commercial marina. She noted there seemed to be some tight curves that might hinder larger deliveries from being made to the marina. John Tunstall stated they would make accommodations for large vehicles to access the marina, but they don’t anticipate any large deliveries being made. Dan Hilla commented it was apparent to him that in 2010 it was probably just overlooked that the rezoning didn’t extend to the center of the river. He felt it was probably the intent of the board that the vote was in favor of it. David Weaver commented the commercial marina and boat ramp would be accessible through private roads and asked if that would be a problem for a commercial marina. He also asked for clarification on whether the commercial marina would have slips rented to the general public outside the subdivision. Burrows Smith explained it could really be called a community marina, but in a PD Planning Development, it has to be called a “commercial” marina because of the zoning description in PD. He stated “commercial marina” is the term used in the ordinance, but they will not be selling gas, etc. and the people using the slips will live in the subdivision. Chairman Collier asked Mr. Smith if he would be comfortable if the approval included conditions prohibiting gas sales and limiting ownership of the slips in general to residents of the community. Burrows Smith stated he would be absolutely fine with those limitations, noting he formerly owned a marina and did not want to be in the gas business again. He assured the board there would not be any fuel tanks there and commented he would sleep better if the board made it a condition. Ken Vafier explained per the definition in the ordinance, the term “commercial marina” is used if there are any commercial services provided, not necessarily just gas. He noted there may have been preliminary discussion about guide services or very limited retail so staff wanted to make sure that was covered and available to the applicant. He commented if there are conditions, they should ensure that the applicant’s intentions for those types of services are still allowable. Chairman Collier stated his intent was not to take away any of the commercial uses that may be there, but to only prohibit the sale of gas. Page 8 of 18 Chairman Collier then announced that Planning Board member Ted Shipley had notified him he had previously been involved in portions of the matter before the board and would like to recuse himself from the vote on Rezoning and PD Master Plan Modification Request Z-880M. He apologized for not interrupting the applicant’s presentation to make the request. Vice Chairman Dan Hilla made a motion to recuse Ted Shipley from the vote on Planning Board Item #2 only. Andy Heath seconded the motion. The Planning Board voted 6-0 to recuse Ted Shipley from the vote on Planning Board Item #2: Rezoning and PD Master Plan Modification Request Z-880M. Chairman Collier asked if board members had any additional questions for the applicant. Hearing none, he addressed the petitioner, Mr. Smith, with the following statement, “This is a rezoning request. If it is denied, a new application may only be submitted within twelve months of the denial if there is a substantial change in the original petition for rezoning. Do you wish to proceed or do you wish to continue this matter”? Burrows Smith stated he would like to proceed to a vote on the matter. Chairman Collier acknowledged the applicant’s decision to proceed with the vote on the matter and go forward to the County Commissioners and entertained a motion from the board. Vice Chairman Dan Hilla made a motion that the rezoning is consistent with the Land Use Plan and is reasonable and in the public interest and he would recommend approval. He then asked for clarification on whether a condition could be included that no fuel sales be allowed, noting he had no preference, but would agree with the wishes of the board. Mr. Vafier confirmed it would be acceptable to add a condition that no fuel sales be allowed. Vice Chairman Hilla amended the motion to add one condition: 1) Fuel sales are prohibited. Assistant County Attorney Sharon Huffman confirmed it would be acceptable to add a condition in a planned development rezoning. Lisa Mesler seconded the motion. The Planning Board voted 6-0 to recommend approval of Rezoning and PD Master Plan Modification Request Z-880M based on the rezoning being consistent with the Land Use Plan and being reasonable and in the public interest with the following condition: 1) Fuel sales are prohibited. Item 3: Text Amendment (A-415, 12/13) - Request by Staff to amend Section 33-1 of the Subdivision Ordinance regarding language required on final plats as it relates to Conservation Overlay Districts. Ken Vafier provided the following staff report. Page 9 of 18  This text amendment request was previously addressed by staff at the November Planning Board work session regarding the Conservation Overlay District requirements on final plats.  Staff presented two options at the workshop and received direction to sort of “merge” the options in keeping with the goal of this proposed amendment, which is to eliminate differing and conflicting delineations of the COD setback line as reflected on a recorded plat vs. what we find when field verifying the COD line at the site.  Conservation resource setbacks are prescribed by the NHC Zoning ordinance to require setbacks from those features defined as a “conservation resource” within the ordinance. An example of these may be salt marshes, swamp forests, natural ponds, etc. and this setback is a local regulation that differs from a CAMA setback, USACE setback, or other agency requirement.  The goal of the proposed amendment is to eliminate conflicting delineations of the COD line, and we propose to accomplish this by: o Ensuring accuracy of COD setback as platted on record lots o Creating a period of validity for staff COD delineation to provide property owners certainty o Allowing for flexibility to account for dynamic site conditions  The proposed language reads: (14) If the Subdivision is within a Conservation Overlay District, the following map note shall be shown: “Subdivision contains an area included within a Conservation Overlay District (COD). Field verification of COD areas shall be performed by a member of the New Hanover County Planning and Inspections staff prior to map recordation to ensure accuracy. Delineations shall be valid for a period of 5 years from the date of delineation or recordation on a final plat.” If during the 5 year validity period evidence exists indicating that the COD area has changed due to the dynamics of wetland migration, shoreline erosion, sea level rise, or other factors such delineations may be subject to revision.  Staff has kept the line on the plat and stated it can be valid for 5 years. Consistent with the City’s language, staff has added a provision that can allow for a change if staff finds field conditions have changed.  Staff realizes there are a number of issues with the COD regulations and intends to bring forth a comprehensive amendment in the future. However, staff wishes to get this mapping issue resolved because we are seeing a number of conflicts when finding that the actual field verification of the COD line does not accurately match some record plats. Mr. Vafier concluded the presentation and entertained questions from the board. David Weaver asked if staff would re-delineate the COD after five years. Mr. Vafier explained after five years, staff would conduct a field verification to determine where the setback would be measured from. He noted staff wouldn’t keep a log of every five year expiration, but certainly if need be, staff would re-delineate the line and someone could request the line be re-delineated so they could re-record the lot with the line in the new location. He explained it wasn’t staff’s intention to update the COD line every five years. The five year Page 10 of 18 validity period was aimed at addressing situations encountered where people have expended a considerable amount of resources and designed homes based on record plats, but staff finds the setbacks to be much more restrictive based on the field verification. Staff would like to rely on the recorded plat, but also needs to keep it consistent with the definition, which states the setback should be taken from the edge of the resource. Andy Heath asked about the line itself, noting the statement regarding the availability of the official resource maps at the county. He asked if there was a problem with the transfer of the line from the official resource maps onto plats and whether that information is in GIS at the current time. Mr. Vafier confirmed the COD line information is currently in GIS and there is also a reference to it on the zoning map, which identifies this as a conservation overlay district rather than a conservation resource setbacks, which are what these regulations actually are. Shawn Ralston commented the COD delineation is similar to a wetland determination. As a first step, GIS maps can be used to determine there may be wetlands or conservation resources on a site based on the preliminary maps; however, field verification is needed to determine if there is a wetland or conservation resource on a site. Vice Chair Hilla asked if certain qualifications or training was needed for staff to determine the accuracy of the COD line. If so, he felt the text amendment should include language regarding those staff qualifications to make it clear. Mr.Vafier stated there currently isn’t a formal training program to mark the delineation of COD features. For this particular purpose, the County relies on their CAMA Local Permit Officers, who are trained to identify coastal wetlands species and other features. Those staff members actually perform these. He noted in the future, the County does intend to develop a formal training program to certify staff, as well as members of the professional community. Ms. Ralston commented staff would still verify the resource just as the Corps of Engineers would verify a wetland delineation. Mr. Weaver expressed concern about the last paragraph. He commented that the purpose of the delineation is to provide the developer or builder with assurance that he can build on the site during the next five years. He questioned the need to have the ability to change the line during that five year period. The reasons for changing it, such as wetland migration, sea level rise, or shoreline erosion, aren’t things he necessarily saw as being a real game changer on a lot within a five year period assuming the delineation was done correctly by staff the first time. Mr. Weaver asked if staff felt there was a need to be able to change that line during the five year period. Ms. Ralston cited the example of the Saylors Watch proposal presented at the November Planning Board where the wetlands secreted allowing them to develop on land that was once deemed wetlands. In that situation, someone would want to have the benefit of re-delineating the line within five years if that were to occur. She also noted the scenario of a coastal storm resulting in abrupt changes in the coastline. Page 11 of 18 In response to a question from Mr. Weaver, Mr. Vafier confirmed the City of Wilmington has a similar provision in their ordinance. Chairman Collier commented he isn’t completely in favor of the amendment and doesn’t like the last paragraph because even with a wetland plat or a CAMA line with a five year window, that line is valid. If the wetlands change that dramatically, the developer could have a wetlands soil scientist or the Corps of Engineers re-map the site. He noted the paragraph almost reads that staff has the option to change that line within five years. While he noted he didn’t think that was staff’s intent. He felt it was staff’s intent that, if it was beneficial to the applicant, staff may adjust the line seaward versus landward to provide a little more tolerance, but the last paragraph doesn’t state that. He recommended eliminating that language and leaving the language regarding the five year validity period. He noted the amendment language sounded as if it was more in the County’s favor that in the applicant’s favor. Chairman Collier also referred to the last line regarding the “surveyed wetland line approved by the Corps of Engineers” which may have been in the code forever, noting once you get into certain areas along the public trust waterways, you have to have a Corps line and a CAMA line certified by DCM by the same methods. Unless there is some qualification based program, it seems subjective. Chairman Collier then opened the public hearing. Seeing no one present in support of the amendment, he opened the opposition portion of the public hearing. Matt Nichols of Shanklin and Nichols law firm, stated he represented the developers of the Tidal Walk subdivision in the southern portion of the county, MREC Tidalwalk. He also recognized George Johnson, a representative of the developer. Mr. Nichols stated the COD ordinance is very problematic on a number of levels. When the City annexed part of the County in 1999, it essentially adopted the COD district. He disagreed with Mr. Vafier’s comparison to the City, noting the City of Wilmington has completely repealed its conservation overlay district as a result of a lawsuit he was involved in in the City where the Superior Court of New Hanover County found the conservation overlay district was not enforceable in that case. The Court of Appeals affirmed the decision of the Superior Court, issuing a 20-page published opinion. Mr. Nichols presented copies of the opinion to the board. He pointed out he felt his client was the most affected property owner in the entire county by the conservation overlay district. His client has a large residential subdivision on the Intracoastal Waterway and it has a number of platted and un-platted, undeveloped lots so it is greatly affected by how the County is trying to enforce this ordinance. Mr. Nichols stated the key is that this is a conservation overlay district, which is a zoning district. The county’s official zoning map shows all official zoning districts. The conservation overlay district is a zoning district. Under Section 50 of the ordinance, it states the county is divided into the following districts: commercial districts, industrial districts, mixed-use, conservation overlay districts. All districts have to be shown on the official zoning map. The County’s official zoning map doesn’t delineate any conservation overlay districts, which is essentially the problem. The conservation overlay district ordinance only applies if the property is in a COD. Mr. Nichols explained the only way a property can be in a COD is if it is shown on the official zoning map as Page 12 of 18 being in a COD. That is the only way a property can be in a B-2 or a PD. He stated a storm, wetland migration, or erosion cannot change a zoning line. The only way a zoning line can change by even one foot is with a public hearing with adequate notification and recommendation by the Planning Board followed by a public hearing by the County Commissioners with a majority vote for approval to change the zoning line. Mr. Nichols stated the conservation overlay district doesn’t change with the resource; it is not a floating zoning. If it is a conservation overlay district, he would ask that the zoning code be followed and the district be put on a map, giving adequate notice and a hearing so there can be a rezoning so the zoning line can be changed. Mr. Nichols said to allow the COD line to be changed administratively through a field verification process via a change to the subdivision ordinance to try to ratify this process is defective. He felt it was putting a band aid on a very significant problem and was simply not consistent at all with the way the zoning code is set up, the official zoning map, and the way property is zoned and rezoned. He also noted the term “field verification” is not used anywhere in the zoning code. Mr. Nichols reported when they pointed out this problem to the City of Wilmington through the litigation process, the courts found the ordinance to be totally unenforceable in that case. Since that time, the City has totally repealed its conservation overlay district and now has conservation resource regulations, which is not a zoning district connection with the COD, which doesn’t make any sense. Mr. Nichols commented Mr. Weaver was correct, why give five years vesting if you can take it away. That assumes you can change the COD line via a field verification process. He reiterated the only way to change the COD line is with a vote of three County Commissioners. He explained they have an approved preliminary master plan for their subdivision with COD lines, etc. that has gone through the Technical Review Committee approval process and is signed by the County. They feel they have rights in that plan. They are concerned about the language about the five year vesting as it applies to recorded plans because there are other plans that are not recorded but certainly give vested rights to developers upon which they rely to obtain bank loans for projects, etc. related to the development process. Mr. Nichols reiterated this is a very problematic ordinance and this amendment would make it more confusing. George Johnson stated he represented Tidal Walk development. As developers they rely on the COD line in the 2011 performance subdivision plan. They have 13-14 waterfront lots that have been platted that are affected by the COD line. When Tidal Walk markets those properties to a homeowner, the homeowner is relying on that line when he purchases it. If that line can be reinterpreted at a later date, that creates problems with being able to sell the property. It creates much uncertainty about whether you can build the home you planned and affects when you build. He noted they also have 8-10 lots with COD lines that are not yet platted and are uncertain how those lots will be affected by the amendment. Mr. Johnson stated he had met with staff a couple of times to work through this, but he was not aware that this issue was coming before the planning board tonight. They would like to continue to work with the county and staff on this issue, which creates a problem for them. No one else from the public spoke in regard to the item. Chairman Collier closed the public hearing and entertained a motion from the board. Page 13 of 18 Vice Chair Dan Hilla asked if it was true for the zoning to be enforceable it has to be on a map. Deputy County Attorney Sharon Huffman stated when the City was going through the litigation several years ago, the County staff realized the City zoning map didn’t have any reference to the COD so the County made some adjustments to the County’s language so that the County’s official zoning map has a reference to the COD and then referred to the more detailed internal maps located within the Planning and Zoning Department and the GIS so owners could seek that information from the department. The County attempted then to make it very clear on the official zoning map that there was a reference to the COD and how anyone could seek that information from staff on properties located within the COD. Ms. Huffman stated there are not as Mr. Nichols stated colored areas that are in any way overlaid on the official zoning map for the COD, but there is a reference and there is clear language that directs interested parties where to find out which properties are located in the COD. Chairman Collier stated if GIS has a line that has been drawn as the COD resource line, he would presume the biggest issue with final plats is that those lines are being shown on the final plats as they are displayed in GIS. He asked if the issue is that the line has never been field verified by anyone. Ken Vafier answered that the issue in general may be the sources where the line is being obtained. He noted he was not the most qualified to talk about historically how it has been applied, but it has been made aware the County never verified the line at all in some subdivisions. Chairman Collier stated at some point a line has to be fixed for a period of time for them to rely upon. He apologized to Mr. Johnson, noting the largest notification about the amendment came out with the last Planning Board Work Session notice. A number of items were discussed at that work session, which was very well attended by the development community. Chairman Collier stated he agreed with Mr. Vafier that this should not be a zoning district, but should be a resource protection area because it is protecting the fringe of the wetlands or buffer to be able to measure from that resource. He hoped the County would take the overlay district out of the ordinance because it creates way too much gray area for everyone. He would like to see the County move forward in that manner. Shawn Ralston commented a version of this amendment was put out in 2009 for comment that was very close to the City’s current ordinance. For several reasons, that amendment was not pursued. From staff’s perspective, going forward with the current comprehensive planning process, we will recognize and identify what resources we want to protect and conserve. From there, staff will craft language based on the comprehensive plan results. For that reason, staff is hesitant to move forward with a major overhaul of the ordinance language. Chairman Collier agreed with that process, but explained we also need to provide members of the public and the development community with information they can rely upon. He noted he doesn’t have any issue with County CAMA staff verifying the coastal lines. He offered the personal opinion that the COD line on existing plats that have been platted within a five year Page 14 of 18 period should stand for the five year period whether it is wrong or not. At the end of five years, the owner should have to prove the line has changed. Chairman Collier felt staff shouldn’t make a list to check the COD line every five years because it is the owner’s responsibility to verify the COD after the five year period. He commented he doesn’t like the second paragraph of the amendment with the vague reference that staff can check the COD line because the owner can’t rely on that, make plans on that, or sell against it. He hopes the amendment will be written more like a resource protection zone because the intent is to protect the resource. David Weaver agreed with Chairman Collier that the second paragraph should probably be removed from the amendment for the reasons previously stated. Mr. Weaver stated as we go forward with amending the conservation overlay district, which is near and dear to his heart, he would ask staff to tread lightly and be careful because he personally felt the conservation overlay district has accomplished quite a bit for the county over the years. He reiterated the second paragraph should be removed because otherwise there is no point in having a five year limit. Andy Heath asked why it was necessary to require the addition of a note on a plat stating that prior to recording the person will verify the COD line. He noted the plat can’t be recorded until the County Planning Department signs off on it. If the County doesn’t agree with the line, staff has the option to have it checked or not approve the plat; therefore, the plat can’t be recorded. Mr.Vafier asked if Planning staff’s approval of a plat finalizes all notes contained on the plat. Staff has struggled with the issue of whether they should rely on the recorded plat or rely on the finding in the field. Ms. Huffman stated it became clear during the discussion on this issue that the COD line on a plat, for example, at Tidal Walk will be different from the line verified in the field. Staff realizes that is going to be the case. She then responded to Chairman Collier’s statement, noting it was her belief it was the intention in moving forward with the text amendment that this language would apply to plats that are already recorded, not going forward with plats that have this language on them. She commented if he felt that was not clear, there needs to be some additional language that the five year period is for all plats, including those that have already been recorded and future plats. It is also the intent that for all future plats, the COD line has been field verified by county staff and is reflected on the plat that it can be relied upon for five years. Staff wanted that information placed on the plat so that everyone understood. Chairman Collier stated it was his read that a note would be placed on current plats that are being platted. He would not say that previously finaled and approved plats, unless they are outside the five year window from their original date, would be field verified. He felt the owner should be able to rely on that and should be given that notice rather than learning when they bring it back in now to build on it that the COD line would be verified by staff. Ms. Huffman stated it was her understanding that it was staff’s intent that the five year confidence period would apply to plats that are already recorded that do not have this language on them and perhaps have not been field verified by the county. Page 15 of 18 Chairman Collier stated the field verification part was the issue. As he understood it, staff is saying the COD line may not have been field verified on plats that have already been recorded but are less than five years old. If that is true, shame on us. Now staff seems to be saying that if a plat comes in that has been recorded, but is less than five years old, they can go out to field verify the COD line and then give it a five year period. Ms. Huffman stated that was not staff’s intent. It is the intent that all plats already recorded whether field verified or not, the COD line that is reflected on that plat is valid for a period of five years. Shawn Ralston confirmed Ms. Huffman statement was correct. Chairman Collier agreed with the intent as described by Ms. Huffman, but didn’t feel the proposed amendment clearly reflected that intent. Ms. Huffman replied that if Chairman Collier didn’t feel the intent was clear in the amendment, additional language should be added to accurately reflect that intent. Shawn Ralston commented the amendment was meant to address situations such as those presented tonight where the line was not field verified by staff and now that staff is going out to look at where the actual resource is, there is a conflict with where the resource is reflected on the map. Staff would like to avoid situations where the developer can’t rely on that COD line. It is staff’s intention for the five year validity period to address those situations going forward and also capture those situations during the last five years. Chairman Collier agreed that would be fair for everyone. Ms. Huffman stated maybe a sentence should be added after the quote that this five year validity period shall also apply to previously recorded plats with COD lines. Chairman Collier stated there needs to be language in the amendment to separate existing and future conditions. He also expressed concern that the language in the next paragraph seems to give the County a shot at the apple when they want it. While that may not be the intent, it does seem that way. Vice Chair Dan Hilla stated he agreed completely there should be some ability to rely on the five year validity for previously recorded maps. Real estate can’t be sold without that reliability. He also agreed the last paragraph needs to be deleted. In addition, Mr. Hilla stated he would also like to see some reference to a qualified member of the staff in the amendment. Chairman Collier asked Mr. Shipley to offer some suggestions on the amendment language. Ted Shipley agreed with the chairman, commenting not only should developers be able to rely on a plat, but third parties should also be able to rely on a plat as well. Many institutions, especially in large commercial projects, will really study those plats. They don’t want their collateral to be changed, even by something as minor as this in their eyes. They want some ability to rely on Page 16 of 18 recorded information. Mr. Shipley stated the board should definitely take a look at this amendment language. Ms. Ralston stated staff could bring the amendment back for consideration by the board in January. Chairman Collier stated it may be best for staff to re-word the amendment and incorporate the board’s suggestions, including giving existing plats a five year vested period against their final plat recordation stamp or amended final plat recordation date, and then bring the amendment back for consideration by the board at a later date. David Weaver asked for clarification that staff would have the ability to verify and change the existing COD line for recorded plats older than five years. Chairman Collier confirmed he felt five years was a reasonable period in this particular case because if it were a wetland line, it would expire after five years and could not be relied upon. That is how the Corps of Engineers judges it. He also recommended Mr. Nichols be given the opportunity to provide input on the amendment language. He asked Mr. Nichols if the discussion had clarified any misconceptions about the proposed amendment. Mr. Nichols replied yes and no, but stated they greatly appreciated and welcomed the opportunity to work with the county on some proposed language. He also noted the board’s discussion had highlighted a number of their concerns for which there aren’t any easy answers. Mr. Nichols also expressed hope they could look at the approved performance residential master plans during the process, which are critical documents in the county with the larger developments. They are thoroughly reviewed and TRC reviewed which are not recorded and traditionally have not been recorded. Beau Rivage is an example of how that performance residential subdivision process has worked well over three decades. Chairman Collier stated they could be treated in a similar fashion as the final plat as there is a date and the County Commissioners sign off on the ordinance for the PD district with the map attached. The COD and wetlines are on that map. He felt it could be potentially added in with a five year window as well to make sure those documents are protected. Andy Heath felt the existing plats should probably be addressed in a different section of the ordinance. The current discussion is related to Section 33-1: Contents of a Final Plat so it shouldn’t address or include maps that have already been recorded or master plans or other documents. Mr. Vafier commented those items could be addressed in the Master Plan contents section of the ordinance. David Weaver stated in regard to performance residential plans, if that line was put in concrete for five years for a plan consisting of several thousand acres, the developer would be responsible for surveying in that line and that may be an expense he may not want to make for a preliminary Page 17 of 18 plat. He offered that for consideration as the amendment moves forward. It is reasonable for the final plat. Chairman Collier agreed it may not be in either party’s interest, but giving it the same five year validity would give everyone a level playing field. It is the board’s wish that staff address the amendment in the best manner possible and bring it back for consideration at a later date. He asked counsel if a motion was needed. Deputy County Attorney Sharon Huffman advised a motion was needed only if the board continued to amendment to a date certain. It is the board’s recommendation that the item be removed and then be brought back later for consideration. David Weaver made a motion to ask the staff to address the concerns raised by the board and bring the amendment back at a later date. Chairman Richard Collier seconded the motion. The Planning Board voted 7-0 to ask the staff to address the concerns raised by the board and bring Text Amendment A-415 back for consideration by the board at a later date. Technical Review Committee Report (November) Sam Burgess presented the following report. The County’s Technical Review Committee met once in November to review two performance residential projects. Covington Covington is located near the 6000 block of Carolina Beach Road in the south central portion of our jurisdiction and is classified as Transition on the County's 2006 adopted Land Use Plan. The Transition classification provides for future intensive urban development on lands that have been or will be provided with necessary urban services. Covington was preliminarily approved as a performance site plan for 89 single family lots by the TRC in April, 2009. The petitioner for the project requested a one year preliminary extension to the plan set to expire December 31, 2013. Services will include public water and sewer along with a network of private roads that connect to Tarin Woods and Battle Park subdivisions. In a vote of 4-0, the TRC approved a one year preliminary extension to Covington subdivision ending December 31, 2014 with three conditions. Rockhill Subdivision Rockhill subdivision is located near the 1900 block of Rockhill Road in the northern portion of our jurisdiction and is classified as Transition on the County's 2006 Land Use Plan. The Transition classification provides for future intensive urban development on lands that have been or will be provided with necessary urban services. Page 18 of 18 Rockhill subdivision was preliminarily approved as a performance site plan for 37 single family lots by the TRC in May, 2007. In May, 2009, the TRC approved a one year preliminary extension to the plan for the same number of lots. The petitioner for the project requested a second one year extension to the plan set to expire December 31, 2013. Services will include public water and sewer with a network of public streets leading to Rockhill Road and Oakley Circle. In a vote of 4-0, the TRC approved a second one year preliminary site plan extension to the project ending December 31, 2014 with three conditions. Mr. Burgess reported the Technical Review Committee would hold a special meeting on Wednesday, December 18, 2013. Three items are slated to be on the agenda. Mr. Burgess then reported that preliminary site plan approvals from January 1 through November 1, 2013 totaled 16 plans, approximately a 94% increase compared with the same period in 2012. In addition, a total of 857 lots received approval during that period in 2013, which is an increase of 98% increase over the same period in 2012. There has also been a 53% increase in final plat lots during that period in 2013 over 2012. Chairman Richard Collier adjourned the meeting at 7:45 p.m.