2014-03 March 6 2014 PBM
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Minutes of the
New Hanover County Planning Board
March 6, 2014
The New Hanover County Planning Board met Thursday, March 6, 2014 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 Chris O’Keefe, Planning & Inspections Director
Dan Hilla, Vice Chairman Shawn Ralston, Planning & Zoning Manager
Lisa Mesler Kenneth Vafier, Current Planning & Zoning Supervisor
Ted Shipley, III Deputy County Attorney Sharon Huffman
David Weaver
Absent:
Andy Heath
Tamara Murphy
Chairman Richard Collier opened the meeting and welcomed the audience to the public hearing.
He announced the beginning of closed captioning for the televised broadcasts of all Planning
Board meetings and asked all speakers to speak clearly into the microphone.
KennethVafier led the reciting of the Pledge of Allegiance.
Chairman Richard Collier reviewed the procedures for the meeting.
Approval of February 2014 Planning Board Minutes
Vice Chairman Dan Hilla made a motion to adopt the February Planning Board minutes as
drafted. Lisa Mesler seconded the motion. The Planning Board voted 5-0 to approve the
February 6, 2014 Planning Board meeting minutes.
Item 1: Zoning Ordinance Text Amendment (A-416, 1/14) – Request by Staff to add
Section 13: Calculation of Time and to amend Section 44: Extension or Enlargement of
Non-Conforming Situations, Section 50: Table of Permitted Uses, Section 53.2: I-1 Light
Industrial, Section 53.3, I-2 Heavy Industrial, and Section 71: Special Use Permits Issued
by the Board of County Commissioners to address regulations regarding industrial uses
and Special Use Permit regulations.
Chris O’Keefe presented the staff report, noting Text Amendment A-416 was continued from the
January 9, 2014 Planning Board meeting. At that meeting, staff presented the details of the draft
version of the special use permit section of the ordinance. Mr. O’Keefe provided a brief
overview of the January meeting and the subsequent steps taken by staff in accordance with the
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board’s direction, and concluded with a presentation of the changes proposed by staff since that
time.
Overview of Proposal and Proposed Adjustments at January 9th meeting:
1) Section 13: Calculation of Time - Included a definition for the calculation of time,
which is not currently contained in the ordinance to add a consistent way to
determine how to count days in the ordinance.
2) Section 23: Definitions - Removed definitions for Limited, General, and Intensive
Manufacturing and added individual uses to the table; and retained the definition for
Artisan Manufacturing.
3) Table of Permitted Uses – Added Limited, General, and Intensive Manufacturing as
group heading in the Table of Permitted Uses; added 86 new uses to the table that
correspond with the 4-digit NAICS industry categories to provide clarity and a
definitive determination for the uses that would be listed in the table; a draft Table
of Permitted Uses included some changes, some of which are no longer being
proposed for inclusion in the ordinance. Staff no longer proposes allowing eight
uses that previously required a special use permit in I-1 to be permitted by right in I-
1 and I-2; staff no longer proposes to allow one use that was not permitted in B-2 to
be permitted with a SUP in B-2 and permitted by right in I-1 and I-2.
4) Clarified when extension or enlargement of non-conforming situations take effect,
by listing the actual date instead of text stating the date of the ordinance being
effective. These sections have been in the ordinance since the October 2011 version.
5) Removed the review of external effects from the I-2 section of the ordinance; and
rearranged, reworded and inserted language for a framework staff may utilize to
request information into Section 71: Special User Permits Issued by the Board of
County Commissioners. That section received a lot of the commentary and many
comments were received from the public.
This section also recognized other permitting processes, including state, federal, and
other local permits that may be obtained by applicants as valid and how those
permits would be treated in a special use permit hearing.
6) Changed Section 71: Special Use Permits Issued by the Board of County
Commissioners
a. Established a 45 day review period by staff and extended the application
deadline from the current 20 days to 45 days;
b. Established a 1:00 p.m. deadline to submit an application to allow for
completeness review by staff prior to the end of the day;
c. Added language to encourage a pre-application conference with staff to
discuss how to complete the application and items that need to be
included.
d. Established a framework for requesting additional information by staff
and when that information could be requested. Listed each item required
to complete a special use permit application;
e. Explained how the burden of proof is forced upon the
applicant/application to present evidence and show the 4 findings of fact
as positive; but then once that’s done, the burden of proof shifts to anyone
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in opposition. A new paragraph was added to clarify how the hearings
will take place.
Following the January 9th presentation and after much discussion, the Planning Board
determined they would like to receive more public comments so a written public
comment period was opened. Staff received a large number of comments, including
approximately 105 comments from members of the public. The vast majority of those
comments were in favor of keeping the ordinance as it currently is, as adopted. Many
people also suggested some minor changes. A few people supported the draft that was
presented verbatim, stating the draft would help to promote business, create jobs, and
promote a more vital economy in New Hanover County.
The majority of people were not in favor of lines 397 through 415 in the draft, which
address federal, state, and local permitting. Many comments reiterated how important it
is that the County has a special use permit process for heavy industrial uses. Some
pointed to the current issues in the news regarding industrial contamination here and in
other places. All of the comments were included in the planning board package. Other
comments were also received. One comment pointed out that the proposed amendments
focus solely on the industrial uses and the thought that the proposed changes will make
it hard for other special use permit applicants. There were also comments regarding the
timing of the amendment and whether the County should be amending the ordinance
when they have recently kicked off a comprehensive planning process and are also
performing an industrial target analysis. The comments questioned if now is the
appropriate time to consider this amendment. Those comments were considered and
some were included in the draft circulated for tonight’s meeting.
Staff also received specific direction from the Planning Board to revisit the time frame
staff has to accept and review applications, and to specifically review the section that
addresses how federal, state, and local permitting would be handled.
Mr. O’Keefe highlighted the following changes contained in the most recent draft:
In the Table of Permitted Uses, remove the proposed language changing some of the
special use permit requirements to permitted use districts, and instead leave only the
translations of the larger definitions - Limited, General, and Intensive
Manufacturing – resulting in no modification to the S’s and P’s in the Table of
Permitted Uses.
Staff strongly recommends a public meeting prior to submittal of an application.
Staff feels the meeting presents an opportunity for both the applicant and the public
to interchange ideas about how the project might better fit into a community and in
that respect will be a win-win situation.
Per the board’s recommendation, adjust the timing of the application from 45 days
to 55 days. Staff offers a five-day review period to determine if the application is
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complete and then a 5-day period for the applicant to submit any information that is
needed in order for the application to be complete.
Correct the notification reference to refer to the section of the ordinance requiring
staff to notify everyone within 500 feet of the affected parcel.
Clarify how permits for federal, state, and local qualities are to be handled in SUP
review.
Establish the ability of the Planning Board, the County Commissioners, and staff to
request additional information.
Clarify the time frame for staff to request that additional information.
Adjust actual requirements of the application to include a report of a public meeting
if applicable.
In the Table of Permitted Uses, the permitted uses and special use permit
requirements were essentially left unchanged and would remain the same as those
uses in the current table.
Mr. O’Keefe acknowledged an error in the Table of Permitted Uses distributed with the agenda
package. In the Intensive Industrial Manufacturing category, Concrete Manufacturing was split
into a 6-digit NAICS code. Everything else has 4 digits. Concrete Manufacturing should remain
in the Intensive Industrial Manufacturing category and should have a 4-digit NAICS code. Staff
had included it to see if each of those uses could be broken down further, but later determined
that those larger policy decisions should be left to the policy makers for another time. Staff did
not change what was in the table, but transferred it from the larger groups to the individual
categories.
Mr. O’Keefe offered to review the proposed draft line by line and answer questions from board
members. He also reported staff had received a draft document from board member Ted Shipley,
which was available in pdf form to review onscreen should the board desire to do so.
Chairman Collier thanked Mr. O’Keefe and asked if board members had questions for staff.
Hearing none, Chairman Collier opened the public hearing and reviewed the procedures, asking
speakers to keep comments brief and concise to ensure everyone would have an opportunity to
speak. Noting the much longer public hearing held previously, Chairman Collier explained the
standard, published 15-minute time frame would be followed to address the much smaller text
change.
Hal Kitchin, a Wilmington resident, past chairman of the Wilmington Chamber and Chairman of
the Cape Fear Foundation, spoke in support of the text amendment, stating the Chamber supports
staff’s efforts to review and modify the special use permit process that applies to industrial and
manufacturing uses in the county. He reiterated his comments in January that they don’t doubt
the good faith of the people who were involved in 2011 in making the changes to the zoning
ordinance; however, they believe experience has shown there are ways in which some of the
negative aspects of those changes can be mitigated.
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Mr. Kitchin stated the 2011 changes had resulted in three primary unintended consequences.
First, it is not clear to businesses whether or not a special use permit is required in order to
conduct their business. Second, it is not clear what documentation an applicant will be able to
submit in support of a special use permit request. Third, it is not clear to an applicant how long it
will take to get from the point where an application is submitted to a public hearing before the
Planning Board to start the process of getting a yes or no decision.
He expressed support of the proposed revised amendment for several reasons. First, changing the
four subjective broad categories of industrial uses into 86 specific uses as defined by the NAICS
code, an industry standard code, will show a business where they fit in the table and enable them
to determine if a special use permit will be required. Second, establishing a clear list of what an
applicant must provide in the application package will result in clarity for the applicant and make
it easier for staff to determine if an application is complete. Third, providing a more specific
timeline between application submittal and consideration by the Planning Board provides
certainty. He noted currently there can be delays in front of the Planning Board and the County
Commissioners and there isn’t much an applicant can do because those boards are the
policymakers who determine how fast applications go forward.
Mr. Kitchin then pointed out the proposed changes are not only good for business, but are also
good for those who might oppose a permit. Applicants may wonder if staff will misplace their
application or never release it to the Planning Board. At the same time, the current ordinance
could also result in a special use permit application going before the planning board sooner than
many of our neighbors would prefer. The proposal would require a minimum of 55 days between
receipt of the application and the first consideration by the Planning Board. He felt that would be
a fair compromise for both proponents and opponents and provide certainty; whereas currently
there is plenty of good faith, but not that certainty people can rely upon. The revisions also
provide a fair compromise for the treatment of state and federal permits. He noted some residents
had expressed concern in January about that proposed language, which has not been revised.
Both sets of proposals being reviewed by the board make it clear that a state or federal permit
can be submitted by an applicant as part of the process and it will be considered, but the board
will have to decide how much weight they give it. Likewise, both proposals also make it clear
that opponents of the special use permit request can present competent evidence to the contrary
and the board will consider that as well so both sides can make their case.
Mr. Kitchin stated his organization had also reviewed Mr. Shipley’s version of the amendment
and felt it was somewhat better than staff’s proposal. He explained while both proposals were
great and would benefit the community, they preferred the Shipley version because it provides
more clarity in the timeline, rewards an applicant for submitting an application sooner than the
deadline if possible, further clarifies the treatment of state and federal permits, and requires the
posting of the entire special use permit application package on the internet upon receipt. Mr.
Kitchin particularly thanked staff for their work on the amendment and everyone for listening to
their concerns. Noting the tremendous difference of opinion in the audience, he stated he was
glad so many people were interested in the future of the community on both sides of the issue.
John Monroe of 1904 Eaton Court spoke in support of the amendment primarily to take a stand
for jobs. He noted the number one issue in the nation, state, region and county is the need for
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jobs. At the end of December slightly over 6,000 individuals were looking for employment in
New Hanover County. In the tri-county area, approximately 12,600 people were looking for jobs.
He explained that 4,000 young people will graduate from the educational institutions in New
Hanover County this year. Many of them will be seeking jobs in New Hanover County. Since the
passing of the special use permit in 2011, not one industry has located here. One reason is
because the current SUP ordinance is too restrictive and discourages industries from coming
here. An article in the local newspaper made a good point recently when it pointed out that both
sides, the applicant and the opposition, must back up their position with evidence. Statements
such as “it will harm the environment” are not sufficient. Proponents must submit compelling
evidence. He noted he expected to hear that the decision needed to be delayed, the time is poor,
and we should wait on the comprehensive county plan, the city plan, the regional plan, etc. He
felt it was time for rational decision making based on the needs of the county. Those primary
needs include filling/providing those 16,000 jobs, the tax base industries bring to the community
that provide the life blood for many of our services, and the industrial leadership of visionary
people in our community. Mr. Monroe stated the answer to meeting the county’s three needs
would be to approve the revised SUP recommended by Mr. Shipley. He thanked the board for
the opportunity to share his viewpoint.
Scott Sullivan of 2528 Canterbury Road and President and Chairman of the Coalition for
Economic Development stated the special use permit as adopted in 2011 has been a hindrance to
economic development. He has spent ten years with the Committee of 100 and over twenty years
in economic development in Wilmington. The special use permit as written today tells people
that New Hanover County is not open for business. He stated all of the amendments that have
come forward are better than the current ordinance; however, the Coalition for Economic
Development supports the Shipley amendment as proposed.
Bill King of 2615 Hydrangea Place stated he spoke as a citizen, a business leader, and the
Chairman of the Board of Directors of Wilmington Board of Business Development. He noted
the reasons for support of the proposed amendment given by previous speakers regarding clarity
and definition around the process are great and beneficial. The amendment is particularly
important because site selection companies are looking at the community to determine if they
would like to explore an opportunity to invest and bring jobs and business to this location. Many
of those companies will pass on this location due to the lack of definition and clarity in the
special use permit ordinance before an economic development organization like theirs has a
chance to look at them. Representatives of site selection companies and companies themselves
have said that the special use permit is a deterrent to even considering New Hanover County as a
location for their business. For that reason, anything the county could do to bring clarity to the
process would be beneficial. Mr. King concluded his remarks, stating Wilmington Business
Development supported the proposed amendment.
Bob Warrick of 2000 Marsh Place stated he was a native of New York and had been in industrial
development for over forty years. He reiterated that the SUP currently in place has taken New
Hanover County off the list of every industrial developer that does site selection work in this part
of the state and country. New Hanover County is no longer on any company’s site selection list.
No prospects are coming to look at New Hanover County for industrial development projects.
That is important because the largest taxpayers in this county are all manufacturing plants. They
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pay significant taxes in the county. He stated the best jobs in the county are manufacturing jobs.
There are 5,400 manufacturing jobs in New Hanover County with an average pay of $76,600.
New Hanover County also has 12,600 jobs in the service industry with an average pay of
$14,500 and 11,600 healthcare and social assistance jobs with an average pay of $40,960.
Manufacturing jobs in the county are so much better than service jobs, healthcare jobs,
construction jobs and administrative jobs. He concluded his remarks, stating there would not be
one manufacturing company in New Hanover County if the SUP that is on the books today had
been in place when those companies located here.
Chairman Collier opened the opposition portion of the hearing.
Laura Parks of 101 Spring Creek Lane, Wilmington spoke in opposition to the amendment. She
commented she didn’t know about manufacturing providing the best jobs in the county and
didn’t recall seeing any manufacturers speak in support of the SUP. It seemed that brokering land
and deals to bring manufacturers or industrialists to the area was a really good job. She only hugs
a tree if she’s climbing it to shoot a deer. She noted a standing room only crowd at the Northeast
Library recently waiting to hear Republican candidates address the SUP issue. Lots of people in
many walks of life are waiting to see how this issue plays out because the homeowners and
residents who pay the bulk of the taxes collectively care what gets sited next to their children’s
schools and what they have to live with in perpetuity when industry does settle here. They like
industry. They are not haters of industry. They simply want a process that answers to the citizens
and answers to the specific impacts on the ground in New Hanover County, the impacts that
residents will live with and suffer under or live well under. Only a process that is held tightly in
control will serve that purpose. She expressed concern about the process, noting she had seen
more teeth and bite power in a paper tiger on a Scooby-Doo show than is formulated in the fix,
the re-fix, and now the Shipley fix of this amendment. She wondered if they were trying to create
an impotent, unusable, and indefensible SUP that sets up a kangaroo court when making
decisions or if they were really serious about collaborating within the process of long range
planning and long range industrial development to come to conclusions that meet the needs
holistically of the community. Ms. Parks noted jobs are needed, but we also need to know that
the jobs industries want to bring here are not going to destroy us in the process.
Lloyd Smith of 3122 Deaver Court stated he is a parent of two kids in New Hanover County
Schools and president of a company that follows smart sustainable policies in the Cape Fear
region. He noted he had issues with six items before the changes presented by staff. He felt the
timing was poor and the amendment should be synchronized with the comprehensive plan,
particularly because economic planning is part of the larger comprehensive planning process and
it makes good sense for it to be part of that larger plan. He felt a shortened timeline should only
be applied to industries that demonstrate that they are not heavy polluters. Shortening the
timeline for a company that has a lot of issues is not going to accomplish the goal we set out to
accomplish with the SUP. Existing industries whose scope or uses change should have to apply
for an SUP. More public notice is always good so any changes that would reduce the amount of
public input or public notice would be a mistake in this process. He stated “requests” for
information would not be adequate. Requiring information from applicants is the appropriate
method because the information is needed in order to make a determination about whether or not
an SUP applies. Mr. Smith stated that one New Hanover County official recently said we can
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make good, sound choices on how best to regulate land use without sacrificing jobs or the
environment. He whole heartedly agreed with that comment and noted the special use permit
provides the opportunity to make those good choices. He expressed concern that the proposed
loopholes would deprive the county of the opportunity to make those choices under many
circumstances.
Doug Springer, a resident of 4101 Cape Landing Road, Castle Hayne and small business owner,
spoke in opposition and thanked the board for giving the public time to look at the amendment
and provide input. He noted the importance of the planning board and asked them to be ready
and informed for the meetings. He stated the proposed text change is huge and contains verbiage
that would tie the commissioners’ hands. He hadn’t seen Mr. Shipley’s proposal. He noted the
need to start using the trained and skilled staff and felt they shouldn’t be bypassed. He felt the
County should use staff’s expertise or they will lose really good staff in the future.
Mr. Springer explained he liked the proposal and saw it as a compromise. He stated he had no
idea what Mr. Shipley had brought forward, but he could definitely live with the text amendment
version proposed by staff. In regard to previous statements about the SUP inhibiting recruitment
and limiting jobs, he felt it was an excuse because the County hasn’t recruited industry in the
right way for over forty years. In their own words, they have only been successful four times in
those forty years in bringing industry here. It is not the verbiage in the SUP. The Planning Board
and County Commissioners are the front line in promoting a good idea or stopping a bad one. If
a good idea comes forward they will recognize it. It will be an industry that hasn’t avoided the
state’s environmental practices by giving away $4 million. When you have a company here
that’s given back $4 million to avoid the EPA, you should recognize it as a bad idea. Bad ideas
cost the county millions of dollars and residents wanting to move here. As a resident of Castle
Hayne, he stated the last three years have been frustrating. Homes are not selling in the area
because people are going to Pender County and Brunswick County. They don’t want to live in
Castle Hayne because they don’t want their kids to live and go to school under the smokestacks
of a Titan Cement and that’s the simple truth. He thanked the board for trying to do something
better and hoped it would work.
Kemp Burdette, a Cape Fear Riverkeeper and lifelong resident of New Hanover County,
commented in the last few months, a chemical spill in West Virginia has left 300,000 people
unable to drink or even bathe in their water and has had a $16 million impact on their local
economy. There has been a 300 million gallon sewage spill in the Haw River upstream of our
water supply. He was disturbed that the NC Department of Natural Resources kept that incident
secret from the public for four days. The expected economic impact of the spill was over $70
million. Even worse was the revelation that the NC Department of Natural Resources, the agency
that oversees permits, is under investigation by the federal government. New Hanover County is
special. It is surrounded by water and is densely populated. Our groundwater is close to the
surface and fragile, and our air quality is very poor. Our economy is based on natural resources
and the people those resources draw here. For these reasons, we need to have local control over
zoning. The argument that we should let the state decide what industry is safe for our community
is irresponsible. First, the state doesn’t always do a great job protecting the environment or
public health. The Duke case made that clear. Second, there are some things the state just doesn’t
regulate, for instance, groundwater. The state handles things like where groundwater is
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discharged, but it doesn’t take charge of how much water industry takes out of our aquifers. The
state also doesn’t address groundwater contamination until it reaches someone’s property and by
then it’s too late. The state also doesn’t get involved in nonattainment. Nonattainment is a
designation a community receives from the EPA when air quality is so bad it threatens public
health. The county nearly reached that point two years ago. Once we reach that point, no future
industry will be permitted to operate in the county. The state issues permits without considering
how the permit may contribute to the area’s total air pollution. Reducing the amount of local
control means increasing the risk to our drinking water, our waterways, our health, and make no
mistake, reducing local control will also have negative impacts on the economy. Zoning
ordinances and the special use permit are critical tools that allow the county to maintain control
over development within its boundaries. This control is necessary to prevent short-sighted
decisions driven by outside interests from leading to significant and permanent damage to the
quality of life for the citizens of New Hanover County. They encourage industrial development
in New Hanover County, but only if that industry is willing to be a good neighbor and operate in
such a way that doesn’t threaten public health or property values or exist in conflict with the
community. This is not unreasonable, burdensome or unfair. It is just the right thing to do.
Ethan Crouch of 932 Sea Ridge Lane, Carolina Beach stated he is Chairman of the Cape Fear
Chapter of the Surfrider Foundation, a nonprofit 501(c)3 foundation dedicated to the protection
and enjoyment of our oceans, waves, and beaches. There are four chapters in North Carolina
with over 4,000 members and engaged volunteers. He is also a business person who works and
lives in the community, but supports responsible growth and business development in New
Hanover County. He encouraged the board to maintain the strictest possible provisions for heavy
industrial business and to postpone making any changes until the comprehensive plan for the
entire region is completed. He thanked them for their consideration of the matter.
Mike Giles of the NC Coastal Federation at 530 Causeway Drive, Wrightsville Beach expressed
thanks to the board and staff for their hard work on the issue. He recognized Shawn Ralston,
noting this would be her last meeting with the Planning Board as she is leaving next week. He
commented she had done the yeoman’s work on this project since 2009 and he felt everyone in
the community owes her a debt of gratitude.
Mr. Giles offered three important points. First, Section 71, the proposed requirement for
additional information lacks clarity. As written, applicants are not required to provide additional
information requested by the staff or the planning board. He asked how the planning board and
staff can evaluate an application if the applicant does not and is not required to provide that
information. The revised requirement for a narrative does not detail what that narrative should
include. It only says you have to submit a narrative. Specific requirements for the narrative will
provide consistency, clarity, and speed for the applicant, save time for the staff and the applicant,
and move the process along in a quicker manner.
Mr. Giles recommended that each applicant if they have to go through a CEPA review or a need
for review, that document be required to be provided to the County. If the applicant doesn’t have
to go through a CEPA review, there’s state statute 113A-8 that the County can require a CEPA
review. In Section 71, once the applicant makes a requisite showing that standards have been
met, the burden shifts to the opposition. If the applicant is not required to provide all the
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information asked for, he questioned how the opposition can make a definitive, educated, and
informed decision and present their facts to the board. That puts an unwarranted burden on the
citizens. Without an effective SUP that provides the tools for proper evaluation of proposed
intensive industry, we risk further damage to the resources that are so critical to a vibrant
economy, a high quality of life, high quality space, and a supportive community is very critical
in this process. He expressed appreciation for the opportunity to make his comments.
Chairman Collier closed the opposition portion of the hearing and opened the rebuttal period.
No one else from the public spoke in support of the amendment during rebuttal.
Chairman Collier opened the opposition rebuttal period.
Karen Carter a resident of Island Creek Drive off Sidbury Road in northern New Hanover
County spoke in opposition to the amendment because she felt it would take the voice away from
the community. She was horrified that a business could come into the community and do things
she knew nothing about without having folks far smarter than her having a comment about it. If
the SUP amendment passes as it is worded right now, it takes away from the citizens and takes
the conversation out of the citizens’ hands. We are not going to be allowed with some heavy
industries to make a comment or ask questions. She asked the board to continue the item until the
entire comprehensive plan is in place and let those plans play a part in this entire process.
Russ Van Nordstrand of 1120 Adbury Court in Winnabow stated he was previously a long-term
planning commissioner in another jurisdiction. In general, he would dispute some of the
statements made earlier which indicated that industry would not come to a place that had a strong
planning system. Having a standard planning process in place doesn’t discourage any
manufacturing industry that truly wants to locate in a particular community for a legitimate
reason. It’s just part of doing business in that world. As someone commented before, you might
hear differently from people who are trying to attract businesses that might not have as much
support in the community. Businesses understand there will be a planning process. The general
public needs to have as much input as possible into these issues. Public hearings are one of the
ways that happens. Without robust input from the public, the board has no way of knowing what
the community truly wants. He expressed his appreciation for the public hearing and the work
put into it.
Stewart Carter, a forty year resident of New Hanover County, stated one only needed to look at
the population explosion in the past forty years or the new housing developments that have gone
up to know that this is an attractive area to move to for a business or family. Our environment
needs to be protected. He expressed concern that some of the changes proposed do not protect
the environment. He has many concerns in regard to the proposed changes. One of his main
concerns is that once a business or industry, whether light or heavy, is permitted, under the new
proposal it can be expanded and the nature of the business can be changed without going through
a new permitting process or a new review. In his opinion that is critical and dangerous for the
county as a whole. It would allow any business or industry to locate here as a light industry and
then without a requirement for going through this process again to expand any way they would
like to expand without any consideration of the effects on the environment of the county.
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Patrick Shoveland of 5725 Oak Bluff Lane inquired if the county wanted the area to be known in
the future as Wilmington or Pollutington and asked what the county was going to do about the 50
million pounds of pollution currently in the local air. He expressed concern that weakening the
special use permit would result in many more high industry businesses coming into the county.
Chairman Collier closed the public hearing and expressed appreciation to the speakers. He then
entertained questions and comments from the planning board members.
Ted Shipley offered an alternative to the staff’s version of the amendment. He explained his
version compares his suggested changes to the January version which was received by the board
members and the sunshine list members via email. Mr. Shipley reviewed the changes to the
January version of the amendment that was rejected in part, asked to be revised, and built off of.
He hoped to alleviate some concerns of the audience and offer a reasonable solution to the
problem.
Mr.Shipley offered the following revisions to the January 9th draft:
Applicants shall submit an application to the New Hanover County Planning and
Inspections Department at least fortyfifty-five (4555) days prior to the meeting of the
Planning Board at which the applicant seeks to have the application considered (the
“Requested Meeting”). (The application deadline was changed to 55 days prior to the
meeting as recommended by one of the opponents at the last public hearing).
No later than five (5) days after an application has been submitted, county staff shall
provide to the applicant either confirmation of completeness of the application or
information regarding non-completeness of the application. To the extent county staff
provides to an applicant information regarding non-completeness and the applicant
submits additional information in response, county staff shall provide either confirmation
of completeness or additional information regarding non-completeness within two (2)
days of the applicant’s submission of such additional information. (This provides
immediate reaction to an applicant’s request for a special use permit. At the January
meeting, staff recommended a 1pm deadline with staff providing a result by 5pm;
however, the board felt that timeframe might be unrealistic. This will provide staff with
additional time for review and also provide the applicant with the surety that staff will
respond within a certain number of days as to whether the application is complete).
So long as an application which is complete pursuant to subsection (3) below has been
received by county staff at least forty-five (45) days prior to the Requested Meeting, the
Planning Board shall consider the application at the Requested Meeting unless the
applicant requests a continuance pursuant to Section 111-3 of the Ordinance. (This gives
the applicant the right to be heard and satisfies due process concerns in the application
process. It ensures that an applicant is given an opportunity to be heard by the Planning
Board, which functions as a quasi-judicial body making recommendations to the County
Commissioners. Applicants have a right to be heard as to how they want to use their land
or the land they have the prospect of buying).
Page 12 of 28
Additionally as soon as practicable after receiving an application which is complete
pursuant to subsection (3) below, county staff shall make the contents of the application
available on the county’s website and shall provide notification of the availability of the
application on the website to the county’s “sunshine” email list. (This provides more
transparency in government and ensures the county is communicating to the public as to
who has applied for a permit and the contents of the application).
Once an applicant has obtained a permit from a Federal, state and/or local authority, the
issuance of such permit shall be considered competent, substantial, and material evidence
with respect to the specific subject matter covered by the permit. However, the planning
board and board of commissioners may also consider any other competent, substantial,
and material evidence properly presented to them, whether by the applicant, the planning
staff, or any other party, including any party who is opposed to the issuance of the permit.
(This addresses concerns about the federal or state permits and sets in stone that a federal,
state, or local permit is automatically deemed a certain weight and is substantial
evidence. That being said, anybody who is opposed to or wants to be a third party and
present similar evidence of similar weight has the ability to do that).
Mr. Shipley stated those are the major revisions to the staff version reviewed by the planning
board in January and offered to answer questions about other smaller revisions proposed in
regard to the number of days, etc.
Mr. Shipley then read into the record from the land use law of the State of North Carolina, which
states, “Since decisions on special use permits involve applying legislatively established
standards to individual applications, it is essential that the zoning ordinance itself include
adequate guiding standards for quasi-judicial decisions. It would be illegal to provide for a
special use permit without including standards to guide decision making for those permits.
Adequate guiding standards are required even where the governing board is making the quasi-
judicial decision. If there are no standards or if the standard provided is so general as to leave the
board unbridled discretion in its decision, the courts will invalidate the ordinance provision as an
unlawful delegation of legislative authority. A board may not legislate through ad hoc quasi-
judicial decision making.”
Mr. Shipley reiterated a board may not legislate through ad hoc quasi-judicial decision making.
This is not a “jobs versus the environment” type of debate. It is about process and someone’s
ability to be heard whether an opponent, a proponent, an applicant, or someone who just wants to
come in and speak as to whether or not they even want industry in the county. For folks who
don’t like a particular use, this process involves procedure, due process, somebody’s right to be
able to use their land, and someone’s right to be heard. If you don’t want a particular use in your
county, you can ask your county commissioners through this process to remove that particular
use from the table of permitted uses. There is not a hidden process where the county is trying to
give special rights to anyone. This has to do with the process by which applicants come before
the staff, before the planning board, and then on to the county commissioners.
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Mr. Shipley read one additional item in regard to land use law. “With special use permits, the
general use is that the applicant has the burden of presenting sufficient evidence that an
application meets the standards of the ordinance. Most zoning ordinances require applicants for
special use permits to be on forms that are designated to solicit basic information necessary to
access compliance with the standards. The board has no jurisdiction to consider an incomplete
application.” He commented if the application that we’ve outlined today, including the narrative
of the proposed use, traffic impact worksheet, traffic impact analysis, authority for employment
of agent form, and all of those items listed, is not complied with completely, then it is illegal to
bring it before a special use permit.
Mr. Shipley asked staff, if willing, to provide input on his proposed revisions that they could join
on and agree to in order to pass the amendment that evening.
Chairman Collier thanked Mr. Shipley for putting together and presenting the information in a
very concise manner. He also thanked him for addressing the land use law because it provides
understanding of the North Carolina laws.
Lisa Mesler expressed appreciation to staff, Mr. Shipley, and the public for their time, input and
work on the amendment. She felt the amendment as presented helped in terms of clarity, as well
as the documentation needed; therefore, she was very comfortable with it.
Vice Chairman Dan Hilla stated his involvement with the special use permit process, noting he
voted for it in 2011. He felt it was a good decision then although it had lacked clarity from the
beginning. He applauded staff’s work on the amendment, noting it was a great compromise and a
step in the right direction which will benefit everyone. He commented after reading Mr.
Shipley’s additional amendments, he thought his version was even a little better; therefore, he
would support the Shipley revisions as written.
David Weaver echoed the Mr. Hilla’s statements expressing a preference to discuss Mr.
Shipley’s version in lieu of the staff version of the proposed amendment. He asked Ms. Huffman
if it was written in the ordinance that the county staff can require additional information and if
that additional information was not provided for whatever reason, if the County could legally
stop the application from going forward.
Ms. Huffman stated practically, the County can keep an application from going forward if the
item is not placed on the agenda. Anyone can file a lawsuit for any reason and that type of
situation may well lead to litigation. If an ordinance reads that Planning staff may require
particular information before the application can move forward and Planning staff does not allow
the application to move forward and it’s not placed on an agenda, then obviously there won’t be
consideration of that application. That situation could lead to litigation for the reason Mr. Shipley
suggested, that there is arguably on the part of the applicant not due process. In that type of
litigation, the courts would determine whether the County could legally do that.
Mr. Weaver stated he understood in regard to the issue of the federal and state permits being
submitted how the information in the application for those permits would be valid. He inquired if
the County could require a higher standard than what is listed or require more restrictive
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standards than those listed in the permit. He specifically mentioned groundwater, noting the state
can issue a permit for where you discharge groundwater, but if a permit is issued, would that
permit prevent the County from putting limits on the amount of groundwater that is withdrawn
simply because the permit deals with groundwater.
Mr. Shipley stated once an applicant has obtained a permit from any of these authorities, the
issuance of such a permit shall be considered competent, substantial and material evidence with
respect to the subject matter covered by the permit. It is saying that a certain amount of weight is
given to that permit so it’s not the actual application that granted the permit. The permit from the
governmental authority is given weight so if it’s from DENR, it is a permit that has been issued,
that is not falsified, that is competent evident. It is given a certain amount of weight more so than
maybe just an opinion off the street, so therefore, it is given at least some standard automatically
that does not prohibit opponents from obtaining their own expert and reports. It is simply saying
those permits because they come from a governmental authority have a certain amount of weight
to them.
Mr. Shipley read the following statement from the manual again. If the applicant presents
uncontroverted, competent, substantial and material evidence - that language is taken from North
Carolina law – that the standards have been met, there is a prima facie entitlement to the permit
and it must be issued. On the other hand, when an applicant fails to present sufficient evidence
for the board to make the requisite findings, the permit must be denied. That is the standard when
it comes to weight of evidence. This has to do with the evidentiary standard; it doesn’t have to do
with the specifics of what you are saying the county can tack on to something. He reiterated this
has strictly to do with the evidence.
Mr. Weaver pointed out in both Mr. Shipley’s version and the staff version the section on
external effects has been taken out. He felt that section should be included in the narrative
because that would make it clear to the applicant up front before an application is submitted that
the external effects must be addressed. It would also make the process move much more
smoothly than if staff is required to request it as additional information or has to tell the applicant
their application isn’t complete because the external effects were not addressed in the narrative.
He stated it would be a strong point for him to support and approve Mr.Shipley’s version of the
amendment if the external effects were included in the narrative.
Mr. Shipley explained what is maintained in his draft and in staff’s draft in that same section, 71-
1(2) where it talks about such additional information may be in the form of tests, studies, reports,
etc. evaluating factors such as sound, vibration, heat, discharge, glare, water quality, or other
factors potentially relevant to the four requirements listed in 71-1(4). He noted those four
requirements are by statute and those are related to item number one which is our findings when
we recommend to the county commissioners that the use does not materially endanger the public
health and safety. That is in the law.
Mr. Weaver expressed belief it would be much clearer to the applicant if the requirement for
discussion of these external effects was upfront and clearly stated in the content of the
application as opposed to being what you have just referred to here as being additional
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information that would have to be brought up by county staff after they get the application and
after the clock is ticking away. To me, it’s critical to have that up front in the application.
Mr. Weaver commented there was one difference in the staff version on Line 411 and Mr.
Shipley’s version on Line 337. The staff version states County Staff, Planning Board, and/or
County Commissioners may request additional information. Mr. Shipley’s version states County
staff may request additional information. It doesn’t make any allowance for the Planning Board
and the County Commissioners to request additional information. He inquired why that language
had been removed from Mr. Shipley’s version.
Mr. Shipley stated he didn’t see a prohibition on it. It was done to cut down on confusion as to
when such information should be submitted. It should be submitted to the staff from the outset. If
the board would like to add that language, it can be added, but it’s more an affirmation of
something the boards are already empowered to do. He felt the board under the chairman’s
leadership had done a good job asking for additional information related to the special use permit
request for a sand mine at a recent meeting. The board felt the evidence was inadequate in regard
to the test well data for the monitoring wells on the GE site and the nearby property and so
requested additional information.
Mr. Weaver stated he would like to include language allowing the Planning Board and County
Commissioners to request additional information in the Shipley version simply so that future
planning board will know that they have that option of requesting additional information.
Vice Chair Dan Hilla agreed with Mr. Weaver that adding language to allow the Planning Board
and County Commissioners to request additional information provides clarify. He noted,
however, in regard to the external effects, in his opinion it is so broad, he felt it was best left to
staff to determine what additional information should be brought forward for external effects. He
noted they have the right to ask an applicant for that when they apply so adding that language in
that way is extremely broad. He felt it was clearer if the staff has that ability to ask as each
different industry comes forward.
Mr. Weaver asked staff how other urban jurisdictions in North Carolinas like Wake County,
Buncombe County, Cumberland County, etc. handle this type of request.
Mr. O’Keefe stated many cities and counties in North Carolina have review processes in place to
evaluate industrial proposals trying to come into their jurisdiction. Some are different from ours,
while some are similar. There is a broad array of ways that could be done. We have a unique
situation because we’re coming in the middle of a process where we have large pieces of
property that are zoned for industrial use. That means that in some counties you may have to
rezone property in order to have industrial land. I can’t answer that question specifically without
that information before me.
Mr. Weaver asked if the county had looked at other urban counties during the 2011 process
because it would be very good to know that Wake County, Buncombe County or another urban
county may have a process in place that has been working well for many years.
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Mr. O’Keefe explained one of the first things staff did in 2011 was determine whether the
County was alone in trying to establish a process for intensive manufacturing industries, but we
were not. He confirmed staff had conducted interviews and done an extensive evaluation of other
locations to see how they do things and the product put into place was a result of that research.
Mr. Weaver stated he knows everyone on the planning board is very concerned about being able
to bring good industry into the county to maintain a diverse economy, provide good jobs, etc. but
the type of industry that is brought in needs to be carefully considered and looked at or we could
wind up bringing in a short term influx of jobs and hurt the county’s future economic
development. Every board member is very concerned about creating a good, solid, diverse
economy that does include high quality industry. He noted that was brought home to him at the
comprehensive plan launch when one of the statistics indicated that nearly 25% of the
unincorporated county is zoned I-2. For that reason, the board’s decision on this issue is not
insignificant. If they open the door to industry that does not help the county in the long term,
they are doing a disservice to the county.
Chairman Collier provided several technical comments. He felt in Section 71-1, paragraph 2, for
any special use permit, language should be changed to state petitioners are or shall be “required”
to hold a public meeting rather than “encouraged”. It is not too arduous and lends itself to good
discussion and a better project. In addition, on line 377, in regard to the written report of the
public meeting, he recommended removal of the language “if applicable” since the meeting will
be required. He agreed with adding the planning board and county commissioners to the list of
people that can ask for additional information in Section 71 although he felt the boards already
had that ability.
Chairman Collier also stated some trepidation on the external effects. He could see both sides of
that issue and has not found anything that blends both of them together. He felt giving the days,
the time, the due process, and the things required by law are probably more prevalent for us to do
because all of the language taken out or adopted in 2011 is still somewhat ambiguous and can
still result in a lawsuit. The language removed was specific to I-1 districts and stated they must
operate in compliance with current standards for sound, vibration, air quality, water, and
applicable under federal, state and local regulations. Everyone says there aren’t regulations for
that so they have nothing to operate underneath and they have nothing to provide information
with for uses that require a special use permit. A non-binding narrative really has no teeth to it
either. It’s just a written piece of paper that accompanies it to disclose the projected external
impacts of the project. It goes on further to say the County may request certain information
deemed reasonable to assess the impacts and effects of a project on a community including plan
specs and other information deemed necessary to determine compliance with the review criteria.
He liked the sentence that states, “Federal, state, and/or local environmental agencies may be
consulted to advise the Planning & Inspections Department on applications for special use
permit”; however, he wasn’t sure where that sentence could apply in the text being reviewed. He
asked for the board’s thoughts on that and where it could be implemented. He felt it was
certainly something the board needed to advise the staff on. Many of these issues are going to be
outside of the staff’s and board’s purview so he felt staff should be given the ability to ask for
guidance from other agencies and experts if they need the information.
Page 17 of 28
Chairman Collier stated he wasn’t opposed to external effects studies, but was opposed to
requiring an external effects study when there is nothing there that tells them what to study. That
means it would be determined case by case. For that reason, we have to rely on the staff. The
staff and citizens have to rely upon the board members having everyone’s best interests at heart.
Board members are not perfect. We are going to make good decisions and bad decisions, but we
going to make the best decisions we can with the information we have and do our best for
everyone. He doesn’t want to live near anything that he thinks is noxious either. He agreed with
Mr. Shipley that if someone is opposed to it, there is a process in place that enables that person to
tell staff he wants to put a motion before the board to remove a particular use from the Table of
Permitted Uses. If we don’t want a particular use in New Hanover County, we need to go
through the process to remove it. We can’t just say we don’t like it.
Chairman Collier stated support for Mr. Shipley’s comments. He doesn’t think it is perfect, but it
is a reasonable amendment to the special use permit text that puts everybody on the same playing
field. He agreed that some of the heavy industries are going to have effects on us that need to be
addressed, need to be reviewed, and the board must rely on staff to do those things. The Planning
Board considered a sand mine last month as referenced earlier by Mr. Shipley. The item was
delayed by the board and, for whatever reason the item has not come back before the board for
consideration. The board saw something in the application that did not deem it to be an
appropriate use for that land at that time with the information presented. The board uses the
information presented to make sound decisions.
Chairman Collier asked for comments from the staff.
Chris O’Keefe stated staff welcomed the rare opportunity to offer critique of a draft from the
planning board and thanked Mr. Shipley for his work on the draft. He felt Mr. Shipley’s draft
added clarity in many areas where clarity was needed so staff appreciated the work that had gone
into it.
Mr. O’Keefe suggested the following changes be incorporated into Mr. Shipley’s draft:
1) Change Line 308 from No later than five (5) days after an application has been
submitted…, to No later than five (5) days after “the application deadline,”… to
provide a concrete date to refer to for that deadline.
2) Change Line 331 to read Additionally, as soon as practicable after “acknowledging”
an application which is complete pursuant to subsection (3) below, county staff shall
make the contents of the application available on the county’s website and shall
provide notification of the availability of the application on the website to the
county’s “sunshine” email list instead of Additionally, as soon as practicable after
receiving an application which is complete pursuant to subsection (3)…. He felt it
was an excellent idea to include how staff shall notify the public about receiving the
application, but recommended the requirement be tied to a complete application
which will go forward.
3) Change Line 350 to read …the date on which the county staff “acknowledged” a
complete application… instead of …the date on which the county staff “received” a
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complete application pursuant to subsection (3) below. That would create a firm
date that is easy for staff to track.
4) Change Lines 358-359 to read If an applicant has obtained and submits a permit
from a Federal, state and/or local authority, the permit shall be considered
competent, substantial, and material evidence… to indicate that the permit should be
submitted as part of the package, rather than just exist as evidence without being
submitted. He felt the paragraph really helped the public, staff, planning board, and
county commissioners understand how to handle the permit process and other
agency permitting processes.
5) Change Lines 298-299 to read Additionally, petitioners are required to hold a public
meeting in accordance with Section 111-2.1 to help inform community members of
the proposal and to find solutions to issues that may arise. This would incorporate
the chairman’s suggestion to require a public meeting and incorporate staff’s
proposal to specify the purpose of the public meeting, which is to create a two-way
street between the citizens and the applicant.
Mr. Weaver felt a public meeting should not be required simply because the regulations will
apply to all special use permit applications that come forward. For example, the board probably
wouldn’t want to require a public hearing for a mobile home.
Chairman Collier noted a day care center may become a controversial issue.
Mr. Weaver acknowledged we may want to have a public meeting for a day care center, but he
wasn’t sure it should be a requirement for all uses. He was flexible, however, to the board’s
wishes.
Mr. Shipley stated he was fine with Mr. O’Keefe’s recommended revisions to his version of the
draft amendment; however, he would take issue with the first item regarding Line 308, which
says no later than five days after an application has been submitted. He stated preference to using
the application submission date rather than the deadline because it encourages applicants to
apply early. He noted it seems a little ambiguous as to what the deadline is because the applicant
has to count in reverse to determine when their right to be heard is. He felt it should be an
affirmative count, such that it is five days after they submit it and it is deemed complete. He
would like to count forward rather than backward from the hearing. If an applicant applies six
months in advance, staff isn’t allowed to let the application sit until 55 days prior to the hearing.
They actually have to review it five days after submission; therefore, it gets on the website
earlier, is reviewed earlier, and is given it’s right to be heard at a sooner date than if the inverse
were true and we counted backwards from the hearing date that was intended by the applicant.
Mr. Shipley reiterated that was the only staff suggestion with which he took issue. The other staff
suggestions were fine.
Mr. O’Keefe explained the reason he recommended the use of the application deadline is that
staff prepares items on a schedule connected to the Planning Board and County Commissioners
meetings. We all benefit from receiving applications as soon as possible and there is no doubt
staff reviews each application as quickly as possible to provide feedback to the applicant about
items that may be missing from the application. However, staff doesn’t necessarily crate the staff
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reports and put all the information together at that time. To receive an application six months in
advance and be expected to give it a full review within five days seems softer and not connected
to a timeframe that could be calendared and scheduled into a work program, but if that was the
requirement, staff would adhere to it.
Mr. Shipley commented staff had originally proposed to review the application for completeness
by 5:00 p.m. following a 1:00 p.m. submission deadline. His proposal gives staff five days to
review the application, which he feels is an improvement.
Mr. Weaver asked Mr. Shipley if it was possible to expand the language on Line 360 of
subsection (3) to read (A) Narrative of the proposed use, “including a description of significant
external impacts”, instead of (A) Narrative of the proposed use. He also asked if he was
agreeable to including subsection (3)(I) A Listing of all Federal, State and/or local that have been
or will be applied for or obtained. He explained that items would put the applicant on notice that
the county will want to look at and discuss those kinds of impacts.
Mr. Shipley inquired what staff would do with the state and federal permits once received.
Mr. Weaver explained in certain cases the groundwater discharge permit would be important to
read because it may contain information about how much water they are going to withdraw, how
they calculate it, and how much they are going to discharge. All of those aspects of groundwater
modeling can play a significant and readily available role in terms of the staff, planning board
and commissioners looking at the impacts on groundwater withdrawal. It wouldn’t require any
additional information from the applicant, but would simply require a listing, if not a copy of the
actual permit application.
Mr. Shipley agreed to Mr. Weaver’s suggestions.
Chairman Collier asked if planning board members had any other comments that may be
required and requested clarification on the permits, noting the statement was that the applicant
would provide a list of permits for which they had applied.
Mr. Weaver affirmed he was not asking for copies because the paperwork could be ten feet high.
Chairman Collier asked if it would be better to ask the applicant to provide a written list of the
local, state or federal permits anticipated for the project so that a response will be provided
whether permits have been applied for yet or not. The language already indicates that if a permit
has been obtained, a copy of the permit must be provided to staff. Once submitted, it becomes
evidence.
Mr. Weaver agreed that language would be better.
Mr. Shipley noted it was to the applicant’s benefit to provide the federal or state permit because
they will have the use in the first place from the federal or state standard.
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Chairman Collier agreed with Mr. Shipley’s comment and asked if Mr. O’Keefe had located any
information on the application.
Mr. O’Keefe reported the application contains a couple of statements, including a note that states
the Planning and Zoning staff, Planning Board, and/or Board of County Commissioners reserve
the right to require additional information to ensure the use in its proposed location will be
harmonious in the area and in accordance with the zoning requirements of the County of New
Hanover. The specific requirement reads the same as what is in this text. The application also
states a narrative or proposed use, but there is no additional information on that item specifically
in the application. Mr. O’Keefe acknowledged staff was agreeable if the Planning Board
preferred the application deadline time period to begin the day the application is received;
however, again noted staff would not be able to schedule in advance application reviews for
completeness.
Chairman Collier stated that was correct, but staff would rather have a larger project to review
sooner rather than later. He commented he would be really surprised if projects were submitted
six months in advance. He suspected it would be an issue of ten days earlier rather than six
months.
Mr. O’Keefe noted Ms. Ralston had pointed out that most applications are received at 5pm on
the deadline day and most are incomplete.
Mr. Shipley commented those five days in accordance with the new language refers to business
days because holidays and weekends don’t count so staff will have a week to review applications
for completeness.
Mr. Weaver asked why some of the definitions of the different types of manufacturing were
removed and whether it would be useful to include them.
Mr. O’Keefe explained the change to the Table of Permitted Uses is a broad change. The existing
definitions in the ordinance just lump the industries and businesses together. The way the table is
designed now, the manufacturing terms just refer to the heading on the top of the column of
listed uses in the table.
In response to Mr. Weaver’s request, Mr. O’Keefe confirmed staff was comfortable with leaving
the definitions off.
Chairman Collier asked for additional questions, comments, additions, deletions, modifications,
etc. from the board. Hearing none, he asked for a motion to find the text amendment to the
ordinance is consistent with the land use plan and is reasonable and in the public interest and
should be adopted.
Vice Chairman Dan Hilla made a motion to recommend approval of Mr. Shipley’s version of the
text amendment finding the amendment is consistent with the land use plan and is reasonable and
in the public interest with the following amendments:
Page 21 of 28
1) County Staff, Planning Board, and County Commissioners can request additional
information from the applicant;
2) If an applicant has obtained and submits a permit from a Federal State and/or local
authority, the permit shall be considered competent, substantial, and material evidence
with respect to the specific subject matter covered by the permit;
3) Local, State or Federal officials may be requested to provide assistance in evaluating
information contained in these permits to clarify the applicant’s particular industry;
4) Require a list of all Federal, State and/or local permits that are anticipated or issued be
included in the application;
5) Change Line 331 to receiving an application to acknowledging an application which is
complete;
6) Change Line 350 to read received to acknowledged an application which is complete;
7) Petitioners are required to hold a public meeting in accordance with Section 111-2.1 to
help inform community members of the proposal and to find solutions to issues that may
arise.
During discussion, Mr. Weaver asked if Mr. Hilla was amenable to expanding the language at
the end of line 371 regarding the narrative of the proposed use to add “including significant
environmental impacts.” He noted no outline was provided to the applicant to clarify what the
narrative should include. He strongly suggested the language be added to the motion.
Vice Chair Hilla stated he did not feel comfortable adding that language to the motion because
he felt the language would be too broad and should be left to staff. He agreed with Mr. Weaver
that staff doesn’t have the expertise in air quality, for example, but felt staff could ask for a
report from an air quality engineer if needed.
Ted Shipley seconded the motion. The Planning Board voted 5-0 to recommend approval of Text
Amendment A-416 with the noted amendments.
Chairman Collier announced a five minute recess.
Chairman Collier called the meeting back to order.
Item 2: Text Amendment (A-415, 12/13 (Continued from December 5, 2013) - 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 presented the staff report.
The amendment was discussed at the November 2013 Planning Board Work Session. A
public hearing was held by the Planning Board at their December 2013 regular meeting.
The board had concerns regarding some of the provisions of the draft at that time,
particularly the need for the amendment to apply to other plans that receive an official
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approval from New Hanover County, but may not be recorded at the Register of Deeds.
The latest version of the amendment addresses those concerns, as well as the validity
period and extension period of these delineations of the COD line.
The goal of the potential amendment is to eliminate conflicting delineations of a COD
line when it applies to a property. He cited instances in the past where a COD line had
been recorded on a record plat years ago, but when staff tried to enforce the setback as
prescribed by the zoning ordinance for a particular conservation resource, sometimes
they did not match up. Sometimes these conflicts were a difference of 25 feet to 30 feet,
which caused a number of problems for staff, builders, architects, buyers and sellers of
property, and other stakeholders. Staff would like to ensure the accuracy of the COD
setback as delineated on project approvals. Another goal is to create a period of validity
for a COD delineation in order to provide property owners and stakeholders certainty as
to where this feature would be and where their setback would be to determine their
buildable area.
One of the original goals was also to provide some flexibility. Conversations with the
planning board and interested stakeholders indicated if staff verified where the line was,
that line should remain for its validity period so staff has struck language proposed in
December concerning staff’s ability to go out due to dynamic site conditions and alter
where the line existed as compared to where it was recorded.
The latest draft differs from the draft presented at the February workshop. The main
differences are:
1) In order to address many of the stakeholders’ concerns that once a line on a map is
approved by the County, it should be an official record of where the resource is
located. Staff has extended the amendment to the contents of the preliminary plan as
opposed to only the final plat. Essentially, should an applicant elect to show this line
on a preliminary site plan, the County will follow the procedure outlined previously
for final plats. Staff will verify the COD line is in the correct place in the field in
consultation with the applicant, their engineers, their professionals, and any other
stakeholders that may need to be involved, and once this map is approved by the
County or from the enactment of this provision, whichever is later, it will be valid
for a period of five years. It will also contain the note that a subdivision contains an
area included within a COD for disclosure.
The contents of the final plat remain largely as seen before. This slight alteration is that
since are now giving individuals the opportunity to show it at preliminary plat stage or
not, we want to ensure that if they have done that, the location of that delineated line
shall be the same as where it was on the final plat for five years. It was not shown at the
preliminary plan stage, they would be required to have the line verified by staff prior to
recordation of the final pat and again it would be valid for five years from the date of
recordation in the Register of Deeds or five years from the enactment of this provision,
whichever is later. He clarified that when an ordinance amendment is passed by the
Board of County Commissioners, a footnote is always made noting the exact date of
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enactment of the provision. That footnote allows staff will know when that five year
period would be taken from.
Mr. Vafier noted discussions after the workshop with Matt Nichols and Mr. Johnson
who have given staff some great ideas and been very patient throughout the process
regarding the administrative extension period. In the current ordinance, section 112-6
provides the grounds for extension of special use permits, our conditional use permits,
etc. This draft provides that the delineated line would be valid for a period of five years
and then an administrative extension may be granted in accordance with that section.
We have had some talks with stakeholders about altering the language in these two
sections of the subdivision ordinance to mimic NC General Statute 153A-344-1. It takes
into account other economic conditions that may apply to the Planning Director’s
consideration of an extension. Mr. Nichols has suggested the County consider some of
that language in lieu of a direct reference to section 112-6. If we were to go that route,
staff would suggest that we also include language that would mention site conditions as
well could be taken into account in the Planning Director’s consideration of the
extension because the intent of this provision of the ordinance is protection of the
resource. If we were only considering economic conditions and market conditions and
so forth, we might not be addressing the factors that are directly related to this
provision.
Mr. Vafier concluded the presentation and offered to answer questions from the board.
Chairman Collier stated at the February work session they discussed having the COD on the
conceptual master plan. He inquired if all those types of plans were covered in this particular
section of the amendment.
Mr. Vafier confirmed staff is saying shall a location for the resources be shown on a preliminary
site plan, special use permit site pan, performance or conventional residential site plan,
conditional zoning, conditional use zoning, EDZD, Riverfront Mixed Use or Planned
Development, which covers any approval that may come from the County within the
Planning/Zoning Department. He also confirmed the delineation that is shown on those plans is
valid for five years after the date of the map typically or this ordinance, whichever is later.
Chairman Collier inquired how the date was determined when the map goes to final platting.
Does it carry forward to the final plat regardless of far forward that is or is the line revisited?
Mr. Vafier stated most of these will not be recorded and are not required to be recorded.
Chairman Collier rephrased his question, inquiring if a plan, preliminary plan or concept plan
that has been approved at a public hearing as most are has a fixed date and the line is valid for
five years. If five years in the future, Moving forward into the future,
Chairman Collier then asked for clarification on how long the County would rely on the line on
the preliminary plan if final plats were being recorded for some sections, but not for the whole
project.
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Ms. Ralston explained staff had discussions about this when putting together the language and
trying to set up an either/or type situation here where you could, if you were submitting a
preliminary plan and you chose to show the line on the preliminary plan, then it could be verified
at that time for five years. However, if you choose not to, a note is placed on the plan that states
the conservation resource may be on site; and then you chose to put it on the final plat, the five
year period starts at that time. Staff tried to clarify it in the section 33-1(14) where it says if the
subdivision is within a COD and a verified conservation resources delineation did not occur at
preliminary site plan approval, if it did occur, then the five years begins at the time of the
preliminary site plan
Vice Chair Hilla commented that it would be the owner’s choice whether they put it on the
preliminary or the final recorded plat. That is when the five year period would start, so you
would assume they would put it on the latter.
Ms. Ralston explained putting the line on the preliminary sets up that expectation that many of
the owners want. She noted a lot of these situations like Tidal Walk and the others seen lately
have been from the preliminary site plan, not from the final plat that is recorded so they are
probably going to do it at the preliminary phase more often than not.
Chairman Collier opened the public hearing to those in support of the amendment.
Matt Nichols, attorney with Shanklin & Nichols at 214 Market Street spoke in support of the
amendment. He expressed thanks to Mr. O’Keefe and the Planning staff, as well as the Planning
Board members for consideration of their concerns during their work on the amendment. He
represents MRCC Tidal Walk, the developer of the Tidal Walk subdivision. His client is an
example of a developer with an approved performance residential site plan. Their project is a
larger performance residential development consisting of almost 200 units, most of which are
single family; however, some are duplexes. Approximately half of the development has been
platted. There are a number of recorded plats on record; however, there are many that still need
to be recorded. It is a larger development that contemplates a long built-out.
Mr. Nichols stated they really liked the additions since November with references in the
proposed language to the other plats, non-recorded plats, which are also very significant. They
go through a review process, are signed by the county, and are looked at in many instances by
the Planning Board and the County Commissioners. He stated they are very much in favor of that
language.
Mr. Nichols stated he understood through discussions with Mr. O’Keefe and Mr. Vafier how
staff would apply or interpret this language. He explained how this language is applied is equally
as important as the language itself. As he understood it, the reference in Subsection 14 regarding
a verified conservation resource delineation would be applicable to an approved preliminary
performance residential site plan. With that understanding in mind, they are also in favor of that
proposed ordinance language. He noted preliminary is a misnomer as these are pretty final maps.
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Mr. Nichols made one suggestion in regard to the extension period language, which appears in
Subsection 32-2(22) and references the Planning Director being able to extend the 5-year period
in one year increments. But, the reference is to Section 112-6 of the Zoning Ordinance. He asked
the board to consider some other factors which the Planning Director could consider. Section
112-6 states the Planning Director can approve an extension if site conditions have not
substantially changed, but it doesn’t list any other factors. He asked them to consider the
language in Section 153A-344.1 of the NC General Statutes, which generally talks about vesting
rights in the county and lists five criteria. The criteria they thought would be relevant include the
size and phasing of the development, the level of investment, the need for the development,
economic cycles, and market conditions. These are all pretty broad concepts, but there may be an
instance where the site conditions have changed whether it’s per the applicant’s doing or not.
With a larger development, such as Tidal Walk, which has a high level of expected build out, the
level of investment is greater than some other developments and we could be in a down
economic cycle. Hopefully, things are looking better, but things could change and we don’t
know where we’ll be in a couple of years. Five years seems like a long time, but more time could
be needed. Again, they would suggest that perhaps instead of a direct reference to Section 111-6,
simply put in the actual ordinance that the planning director can grant the extension in light of
these economic type factors and site conditions. They feel those factors are relevant and should
be considered regardless.
Mr. Nichols reiterated they are very happy with the proposed changes and appreciate the board’s
consideration and time in looking at this issue. It is a very important issue even though there isn’t
a room full of people to hear it. He reiterated his appreciation to the board for taking a proactive
look at the issue and addressing it.
No one else from the public spoke in support or in opposition of the text amendment.
Chairman Collier closed the public hearing portion of the meeting and asked for questions and
comments from board members.
Chairman Collier commented if a preliminary plan has a COD line on it for five years and it can
be granted two year extensions by the Planning Director, it could be extended for however long
based on economic and/or other conditions. He stated his concern is when the final plats start
coming through, if there is any time at which that line on the preliminary plan is no longer valid.
A loophole still seems to exist in the middle somewhere. If the line approval lasts for five years
and the extensions are exhausted, staff will have to go back and look at the line. That seems to be
the remedy.
Ken Vafier confirmed that is essentially what would take place if the validity period and the
extension period expire. A new plat could then be recorded establishing a new period of validity.
He noted the chairman made a valid point.
Chairman Collier commented final plats are going to be ongoing in sections so that can stand
alone. He referred to the preliminary side where someone has started recording plats and is still
relying on the data. He guessed that once the validity period and any extensions has been
exhausted, if all the final plats are not recorded or at least very close to being recorded, there
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would be some option to go look at the remaining areas left. He noted it seemed a bit unclear to
him; however, if staff was comfortable with it, he was fine with it.
Mr. O’Keefe affirmed staff is comfortable, noting they created this amendment with the
knowledge that there is a lot of debate about whether the sea level is rising. In a 10-year time
span, five years plus five extensions, and your period expires and staff has to go out and re-
determine where that line is, it should be very close to where it was previously. Staff feels that is
a reasonable validity period. If the location of the resource has changed because of a hurricane or
some other unforeseen event that line does change, the point of the ordinance is about the
resource so we think it’s important to reevaluate it if that validity period does expire.
Chairman Collier noted it is in everyone’s best interest to record the final plats as quickly as they
can to keep the COD line fixed in space for that time period.
Ms. Ralston stated the reason we have seen issues with the COD line is not because the line has
moved, but because the line was never verified and was put on the preliminary site plan in the
wrong place.
Chairman Collier commented this is a great improvement from where we started in November,
as noted earlier by Mr. Nichols. He felt it is a needed update to the ordinance and gives
applicants some certainty in many of these plans because a tremendous amount of money is
spent to get through preliminary plans, etc. We need to have some way of acknowledging those
developments that take a long time.
Chairman Collier asked for additional comments from the board. Seeing none, he entertained a
motion from the board.
David Weaver made a motion to recommend approval of the text amendment to the ordinance
based on finding it consistent with the Land Use Plan and reasonable and in the public interest.
Lisa Mesler seconded the motion. The Planning Board voted 5-0 to recommend approval of Text
Amendment A-415.
Chairman Collier thanked the staff for presenting an excellent text amendment and thanked Mr.
Nichols and his clients for their interest, patience, and hard work on the amendment.
Chairman Collier asked for additional comments from the board. Seeing none, he entertained a
motion from the board.
David Weaver made a motion to recommend approval of the text amendment to the ordinance
based on finding it consistent with the land use plan and reasonable and in the public interest.
Lisa Mesler seconded the motion. The Planning Board voted 5-0 to recommend approval of Text
Amendment A-415.
Chairman Collier thanked staff for their work on the amendment and expressed appreciation to
Matt Nichols and his clients for their interest in the amendment.
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Technical Review Committee Report (February)
Ken Vafier provided the following TRC Report.
The County’s Technical Review Committee met twice in February and processed eight
preliminary site plans, which totaled 1,138 residential lots, 517 of which are new lots. The rest
are extensions to plans. Details can be found in the TRC Report included in the Planning Board
package.
1) The first project, Scotts Hill Village, was approved unanimously for 226 lots with
conditions of note. One of these conditions is a future pedestrian access easement
and vehicular access to a future county park site on Fox Creek.
2) Adams Landing in the south central portion of the county was approved for 42 lots
unanimously with conditions.
3) Emmarts Landing was approved for the residential component of the plan of 159
lots in a unanimous vote, also with conditions. The Planning Board approved a
community boating facility for the project two months ago.
4) Marsh Landing Place was a re-approval of 29 lots with a unanimous vote.
5) Parson’s Mill was extended for 354 lots that were previously approved.
6) Riverside was also an extension that was approved reauthorizing 238 lots.
7) Sunset Reach was a revision to an originally approved plan totaling 68 lots.
8) Maynard Division, a performance plan for 22 new lots, was unanimously approved
again with conditions.
Mr. Vafier thanked David Weaver for serving at the TRC chairman for those meetings.
David Weaver stated while reviewing the special use permit materials, he realized the existing
ordinance dealing with expansion and modification of existing industrial uses is worded in such a
manner that a 20 acres sand pit on a 1,000 acres parcel that was in existence as of October 2011
could be expanded throughout the whole parcel and onto adjoining parcels if it is under the same
ownership. In addition, the operation of that sand pit could be modified such that the owner
could pump out huge amounts of groundwater compared to the way it may be operating right
now. In his opinion that is a dangerous situation here in New Hanover County, not just with sand
pits, but with any type of existing industry.
David Weaver made a motion to recommend staff review the section of the industrial zoning
ordinance that allows for an expansion or permutation of the existing industrial uses without
necessarily being required to get a special use permit. Vice Chair Dan Hilla seconded the motion.
The Planning Board voted 4-1 to request staff review the section of the industrial zoning
ordinance that allows for an expansion or permutation of the existing industrial uses without
necessarily being required to obtain a special use permit. (Ted Shipley voted against the motion).
David Weaver asked Mr. O’Keefe to notify the economic development and environmental
groups that were in attendance earlier in the evening about the issue being addressed at the end
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of the meeting. He explained he didn’t want to address the issue earlier because it is an existing
ordinance and he felt it would have confused the earlier issue.
Per Mr. O’Keefe’s request, Mr. Weaver clarified his expectations through the motion, expressing
concern that an existing heavy industrial use that may be fairly small scale, but sitting on a large
parcel that is permitted right now and is treated as a conforming use would be allowed to expand
or to modify its operation without review or constraint by the county based on the existing
regulations. Even if it was a new use, it would require a special use permit under the ordinance
amendments recently adopted. He explained while there may not be any instances out there
where it could be a problem, given the fact that 25% of the land area in the county is zoned
Heavy Industrial, he would not like to see that happen.
Mr. O’Keefe asked if the intent of the motion was for staff to evaluate the situation on the
ground and bring back a risk analysis to the board.
Mr. Weaver explained he was requesting a risk analysis. Staff wouldn’t need to do a huge
amount of research unless they wanted to do so. He isn’t looking at a proposed text amendment,
but seeking an examination of the feasibility of whether such an amendment might be valuable.
He thanked Mr. O’Keefe and asked him to notify the appropriate people who were present
during the special use permit public hearing to ensure the board is being transparent on the issue.
Chairman Collier expressed on behalf of the Planning Board best wishes to Shawn Ralston as
she moves forward in her endeavors and relocates with her family to Richmond, Virginia.
Shawn Ralston thanked the board, noting she had enjoyed working with each member of the
Planning Board. She thanked them for their service to the county and noted she would keep in
touch with her fellow staff members after her departure.
Chairman Collier expressed appreciation for Ms. Ralston’s service also, noting it had been a
great pleasure working with her.
Chairman Collier adjourned the meeting at8:55 p.m.