MINUTES
STATE
OF
The Henderson County
Board of Commissioners met for a special called meeting at 7:00 p.m. in the Commissioners’
Meeting Room in the Historic Courthouse on
Those present were: Chairman Bill Moyer, Vice-Chairman
Also present were:
Planner Matthew Cable, Planning Director
Absent was: Elizabeth Corn
CALL TO ORDER/WELCOME
Chairman Moyer called
the meeting to order and welcomed all in attendance. This is a special called meeting, a Public
Hearing for Vested Rights Amendment with respect to application VR-2007-03-A1, known
as the Biltmore Farms Hammond Tract. He
stated that because of the way the hearing was noticed it would have to be done
as a quasi-judicial proceeding which makes it a more formal proceeding than the
Board and possibly the citizens like.
We must follow through unless all of the people who are identified as
parties agree to waive the requirement of having a quasi-judicial hearing. If this is the case we can have a much more
informal public hearing.
Commissioner Young made the motion that the Board go into
public hearing in respect to Vested Right Amendment application
VR-2007-03-A1. All voted in favor and
the motion carried.
QUASI-JUDICIAL
PROCEEDING – VESTED RIGHTS AMENDMENT APPLICATION VR-2007-03-A1 also known as
Biltmore Farms Hammond Tract
Chairman Moyer stated that this is a
quasi-judicial proceeding being held in respect to petition and a Public
Hearing on Amendment of Vested Rights granted to Biltmore Farms, LLC, where
Biltmore Farms, LLC is the petitioner. A
quasi-judicial proceeding, much like a court proceeding, is one in which one’s
individual’s rights are being determined under specific rules of
procedure. As such, not every person has
a right to give evidence in a quasi-judicial proceeding. Under the Rules of Procedure for quasi-judicial
proceedings, only persons who can demonstrate that they will be affected by the
outcome of the decision are allowed to participate in the proceeding.
All persons who are allowed to speak and
participate in this hearing, including all witnesses that will be called, must
be placed under oath.
The proceedings will be as follows:
· The Board will ask any
persons (other than the petitioner and the Henderson County Planning Staff) who
desire to become parties to this action to explain how they would be affected
by this proceeding. For example, they
may be the owner of an adjoining parcel of property, or have some other special
and unique interest that justifies their participation as a party. You should understand that you do not have to
be a party in order to testify in this proceeding.
· Then all witnesses and
parties will be sworn as a group to tell the truth in their testimony.
· The Board will then have
the Planning Staff summarize the petition, and what is sought by the
petitioner.
· The Board will then have
the petitioner or the petitioner’s attorney present their evidence in support
of the request.
· Each party (and
Commissioners) has the right to ask questions of the witness.
· After the petitioner is
finished presenting evidence, the other parties are then allowed to present
their evidence. The Board may impose
(has imposed) a time limit of 3 minutes for each witness to present evidence,
except for parties which will be given a time of approximately 5 minutes.
· Again, each witness who
testifies may be asked questions by the other parties.
· The members of this
Board may also ask questions.
· After the evidence is
presented the Board will discuss the issues raised and will make a
decision. The Board’s decision must be
in writing within 45 days of the hearing.
· We will now identify the
parties. The Board acknowledges the
petitioner, Biltmore Farms, LLC, and the Planning Staff as parties to this
proceeding. Are there any other persons present
who can demonstrate that they will be affected by the outcome of this
proceeding and who wish to be a party to this proceeding?
Mr. Edward R. Doyle Jr. who resides at
The Board
of Commissioners had no objections and voted unanimously to accept Mr. Doyle as
a party to the proceedings.
There were no other citizens present who wished
to be a party to the proceedings.
Chairman Moyer asked that council for the
petitioner to approach the podium.
Attorney Susan Taylor Rash came to the podium to
represent the petitioner Biltmore Farms.
Chairman Moyer asked Ms. Rash if she would agree
to waive moving forward as a quasi-judicial proceeding. This would give the Board a lot more
flexibility and the hearing can move a lot faster if they do not have to go
through the formalities.
Chairman Moyer also asked Edward R. Doyle, Jr.
if he would agree to waive moving forward as a quasi-judicial proceeding.
After conferring with the petitioner, Ms. Rash
agreed to waive moving forward as a quasi-judicial proceeding.
Mr. Doyle also agreed to waive moving forward as
a quasi-judicial proceeding.
Commissioner McGrady explained that this would
eliminate the cross examination procedure.
Project
Summary from Planning Staff
The Deputy Clerk swore in Matt Card and Anthony
Starr.
The Board of Commissioner issued an Order
Granting Vested Rights for Biltmore Farms Hammond Tract on May 24, 2007,
allowing for the undertaking and completion of the development and use of
property under the terms and conditions of an approved site-specific
development plan and the Order. This
order was issued in accordance with former Chapter 189 of the Henderson County
Code (the Vested Rights Ordinance) to which the application is vested. The development vested rights are attached to
and run with the real property for an approved extended five (5) year vesting
period as outlined in the order.
The proposed amended site-specific development
plan does propose a number of changes that are all inter-related as follows:
Vested Rights Plan Modified Plan
Total Units 653
total units 635
total units
Single Family Lots 234 330
maximum
Duplex 42
buildings (84 units) 11
buildings (22 units)
Triplex 49
buildings (147 units) 57
buildings (171 units)
Quads 47
buildings (188 units) 28
buildings (112 units)
Stream Crossings 9
crossings 8
crossings maximum
Impervious area 15.4% 14.0%
maximum
Total Open Space 240
acres (51.06%) 237
acres (50.43%) minimum
Open Space per unit 0.368 acres/unit 0.373
acres/unit
They are also requesting the following:
· The minimum lot size
required before be removed and allow an average density provision of 0.74 acres
per unit
· In addition to selling
land/home packages, allow selling of individual lots without homes
· A 3 acre reduction of
open space (from 240 acres to 237 acres)
· An increase of 1.08
miles in additional trail and sidewalk
For comparison purposes, the existing approved
plans and the amended plan were provided to the Board. Mr. Cable highlighted the following
information:
· The areas contained
within the red circles are the existing approved plan showing the principle
areas where multi-family units are proposed to be changed by the amended
plan. The new proposed plans now show
the units to be single-family lots.
· The most changes were
seen in what is proposed to be phases 2, 5 & 6 in terms of a multi-family
unit change to single-family lot. This
is an overall reduction in density of 18 total units.
· The areas contained
within the orange circles show where proposed roads were eliminated and has
resulted in reduced connectivity in these areas of the development. However it appears to staff that most of the
modifications were due to the reconfiguration of lots.
· The area contained with
the blue circle is the principle entrance proposed. The applicant is showing a reconfiguration of
that entrance to be a round-about. This
was actually at the recommendation of the North Carolina Department of
Transportation.
· Primarily phases 5, 6
& 7 show loss of the roadway networks which is connected to the lot
reconfigurations.
Chairman Moyer opened the floor to questions
from the Commissioners. There were
none. The petitioners were called to
the podium for their presentations.
The Deputy Clerk swore in Tom Williamson and
William Buie.
Chairman Moyer indicated that after all of the
people had a chance to speak the petitioners would have a chance to respond and
make final comments.
Mr. Tom Williamson, Vice-President of Community
Development in Biltmore Farms stated that they had been before the Board
approximately 15 months prior and had achieved vested rights approval. The market among other things had changed and
it made since to them to look at the plan.
They commissioned a study with Robert Charles Lesser who completes
market studies for master plan communities around the country. Based upon their research and what they were
seeing from their projects in Buncombe and
Mr. William Buie, engineer of Lapsley and
Associates stated that they had been working with Biltmore Farms for a number
of years and on this project. He
referred to the impervious area of approximately 14% which is a reduction from
the original vested rights plans of 15.4% that the Board had approved. They have also reduced from 9 to 8 stream
crossings. The primary change has been
from attached products to single-family lots.
Most of the open space change is now in the form of single-family lots. In phases 2 & 5 much of the open space
included in the 240 acres was around the proposed attached units, and now much
of the land is in the form of single-family lots therefore providing more green
space. While they do see a reduction in
common open space from 240 acres to 237 acres, the overall green space has
increased. The current 237 acres of open
space is over 50% of the property. They
are asking for a number of caps in the number of units (305 attached units) and
the highest intensity would be to the quad units with the flexibility to work
with staff to be able to adjust between the duplex and triplex units or to be
build fewer of the quad units if that is what the market requires.
Public Comment
The Deputy Clerk swore in Doug Salkewicz, Edward
Doyle, Angela Fernandini and Richard Freudenberger.
1.
Doug
Salkewicz – Mr. Salkewicz stated that the traffic impact study had just arrived
today. He questioned how the Board came
to their decision to allow this hearing without a traffic impact study. (Chairman Moyer stated that staff would
address this question at a later point in the meeting). He was concerned with
2.
Edward
R., Doyle, Jr. – Mr. Doyle stated in the matter of the application for an
amendment to this Commission’s previously granted vested rights to Biltmore
Farms development company, it was his request that the Board both deny the
application for amendment and furthermore rescind the previously granted vested
rights as that action is an option legally available to them. He did not feel that Biltmore Farms met the
standards for vested rights and was not entitled to an amendment of its vested
rights for a more intensive and destructive development. He presented three reasons why he felt the
Board should deny the application for amendment and to overturn the previous
granting of vested rights. It is
immoral, unethical, and illegal.
Biltmore Farms came to this Commission with a development plan they
claimed was so far advanced that it would be unfair to apply the new land
development code. Now, they seek to change
the deal midstream, having “discovered” with market changes that their
development will not be profitable enough.
The standards for vested rights required them to show that they were far
along in the planning for this project, it is immoral to allow them to make
that claim one day and come back the next with an assertion that they had not
thought their development through far enough to ensure they made a profit. It is also fundamentally unfair and
misleading to the people of
Chairman Moyer stated that Mr. Doyle was going
beyond his comments with respect to the amendment and felt it was irrelevant to
hear his proposals. He asked Mr. Doyle
to bring his comments to a conclusion.
Mr. Doyle stated that in
closing, he requested that this Commission deny the amendment to the vested
rights application and reverse the original granting of vested rights. Know full well that the citizens of
3.
Angela
Fernandini – Ms. Fernandini stated that about a month ago this developer had a
community meeting at the Etowah Country Club where the representatives for this
subdivision said that their vested rights amendment would in fact reduce green
space. She is glad that this subdivision
has decided to reduce its number of quadraplexes. However, she did not feel that a reduction is
green space should be allowed. If
nothing else green space should be increased.
Consider this weeks weather with the amount of rain that we’ve had and
received and that we desperately need, green space will help the rainwater soak
into the ground at an acceptable rate instead of turning into a new problem
which is storm water runoff. Part of the
reason vested rights agreements are sought is for the protection against
changes and yet this subdivision, that was adamant about seeking vested rights,
is now wanting to make changes. She has
spent most of her life living on
4.
Richard
Frudenberger – Mr. Frudenberger stated that he came to the meeting not as a party
but as a citizen of
Planning
Department Recommendations
As in the original
granting of development vested rights for Biltmore Farms Hammond Tract, the
approval of the amendment request will be based on the need to protect public
health, safety and welfare.
The Board may require
additional terms and conditions as necessary to ensure the public health,
safety and welfare.
Also, as a reminder, the
approval is tied to a site-specific development plan as defined by former
Chapter 189, Vested Rights ordinance.
Staff supports the
development vested rights amendment request based on such approval being
subject to staff recommended conditions, in addition to any other conditions
that may be discussed during the hearing and any conditions that the Board of
Commissioners may impose.
With regard to type and
intensity of use, the applicant has requested the elimination of minimum lot
size with overall density limitations, a reduction in overall units and
density, flexibility to sell lots without homes, and flexibility in the mix of multifamily
units.
Staff recommends that
the applicant be vested to a maximum number of units (330 single-family and 305
multifamily); be vested to an average density of no more than 1.35 units per
acre with an average lot size no fewer than 0.74 acres per unit; and be able to
sell single-family lots as or not as land/home packages.
Chairman Moyer stated
that to this point, all of the requests were in accordance with the amendment
application.
Commissioner McGrady
stated that Staff had added that there would be some discretion left with the
Planning Department with respect to future composition of multi family units.
Mr. Cable stated that
this statement was correct. Further,
with regard to the applicants request regarding the residential units…as noted
by documents provided to the Board, by the
The applicant, as noted,
has requested full flexibility in terms of moving units between duplex, triplex
and quadraplex building types with a cap on quadraplex units only; of the 305
units that they be able to have those in duplex, triplex or quadraplex in any
combination with the caviat that they would have no more than 28 of the quadraplex
units.
Staff is recommending
only a minimal amount of flexibility be granted, whereby Staff would have the
authority to grant, administratively, approval for modifications in the
multifamily unit composition for up to 10% of the multifamily units (or 30
total units). Staff is not requiring a minimum and the table included in
the agenda and PowerPoint only intend to be illustrative of the possible ranges
in unit type this flexibility would afford. Beyond this flexibility, any
further changes to the composition of the multifamily units must come back
before the Board of Commissioners in a public hearing.
Chairman Moyer
questioned if Staff would accept 28 maximum on quadraplexes but limit their
ability to move between duplexes and triplexes to more than 30 in either
direction.
Mr. Cable responded that
this statement was correct.
Chairman Moyer stated
that the other possibility would be that Staff approves them for the maximum
with flexibility to go down to the full extent they wished.
Mr. Cable responded that
this statement was correct.
Chairman Moyer stated
that if they took all the quadraplexes or triplexes down to duplexes he
personally would not have a problem.
Alternatively the Board
could vest the applicant to the maximum number of units as currently proposed
by the applicant without any flexibility. The applicant was previously vested
to a maximum number of each unit type.
The Board may wish to
further discuss the appropriateness of this flexibility in light of the
applicant’s request.
With regard to open
space preservation, the applicant has requested a 3 acre reduction in open
space and additional trails and sidewalks to link the open space areas.
Staff recommends the
following regarding the preservation of open space:
· The applicant vested to
a minimum amount of open space as originally proposed (240 acres)
· The applicant provide a
minimum of 9.73 miles of pedestrian trails and sidewalks (with sidewalks
provided on at least one side of the road in areas of multifamily units)
Due to the existing
order in effect that is recommended be carried forward, Staff does not suggest
any additional conditions, beyond these, at this time.
Commissioner McGrady
stated that in respect to the open space issue, while they were seeking a reduction
they then go on to say “in reality there is more total open space in the
revised plan but some of the public open space becomes private space in the
yards of single family homes. This
phenomenon is not accurately reflected in the way open space is calculated.” He questioned if Staff agreed with this
assessment or did they have any basis on which to judge it.
Mr. Cable responded that
he felt that what the applicant was speaking to was the fact that by reducing
the density you are having fewer building and in essence you are going to see
more green space. However, it being open
space that is accessible to the entire public, if it is privatized in
individual lots that would be staffs position to not reducing that. He feels that the petitioners arguments is
that they actually have more open space, but within lots. Staff believes that the open space should be
accessible as defined by the order to all citizens of the development.
Response by the Petitioner
Tom Williamson stated that the traffic circle is
primarily been pulled back on to their property. They have spoken with the Edwards and other
in the community around there and they are very enthusiastic about the concept
of this traffic circle in relation to pulling away the traffic at a bad intersection. He responded to Mr. Doyle’s comments with the
following:
· The approval from NCDENR
was received on April 1, 2008 for the expansion that will accommodate the
growth which the applicant and developer of the project will be paying for out
of tap fees.
· Clearly this is not a
more intensive development with fewer units and less impervious.
· They are reducing green
space as defined by the UDO (code), but in terms overall of the open space on a
per unit basis they are actually better off.
In response to other statements:
· In regard to BMP’s they
are not exempt from the changes to the state water quality issues. They will have to comply with them. They have
always done (voluntarily) BMP devices at
Commissioner McGrady asked the petitioner if
they had seen the draft of possible conditions that was proposed by staff.
Mr. Williamson responded that they had received
a copy the prior Friday. They were
uncomfortable with the minimum on quads.
They would possibly want to do fewer quads than twenty-one; if they
can’t sell them they do not want to build them.
The thirty unit number does not touch upon units it touches upon structures
and buildings. They have 96 sites of multi family and they would be more
interested in being able to change them from four to three to two with the caps
on basically what the obnoxious use is. They are not comfortable with these
conditions.
Commissioner McGrady asked the petitioner with
respect to the lot size and maximum density, staff has proposed different language;
was he comfortable with this.
Mr. Williamson did not think that he had seen
this. He stated that their plan was to have a cap on quads with the hope that
they would have flexibility to convert a quad unit down to a triplex or duplex
as long as they stay within the footprints of the 96 sites.
Further discussion followed with regards to the
possible conditions presented by staff and the petitioner had no further
problems with the recommendations.
Commissioner McGrady questioned if the land was
still owned by the
Russ Burrell, looking at the order, stated that
it basically talked about the developer seeking development rights in a
particular piece of property. Given that the nature of vested rights preceding
is the right to develop, it is certainly the appropriate way as long as they
have the legal authority to move forward. The
Chairman Moyer asked the petitioner if the
following conditions of them having no more than 28 quadraplexes and no more
than 67 triplexes with flexibility anywhere under that with the same total cap of
305 units would that give them what they need.
The petitioner felt that this would work. The
maximums were not a problem. It was the minimum's that gets them in a
"tail spin" from a product mixed point of view.
Commissioner McGrady stated that in the
presentation from staff it stated that staff had the authority to act to
protect the public health and welfare, and he questioned how they would respond
to Mr. Doyle's comment about the County not doing anything to protect the
public health and welfare in amending or changing the vested rights that have
already been granted.
Planning Director Anthony Starr stated that in
staffs prospective this is the general phrase or terminology used in any
ordinance making or decisions made. This is the context from which you will
render your decision in balancing the request of the developer and the needs
and impacts on adjoining property owners in the immediate area. This is nothing
more than just the "lens" in for which you look through. This is also the "lens" in which
they evaluate and make staff recommendations.
Russ Burrell stated that the vested rights
starts with the idea that they can have no more than what they had under the
original ordinance back when they made the first application. You could in
return for vesting those rights impose conditions that you found to be proper
under the health and welfare standards. We
are now amending that and this allows the Board to reopen that right by their
application to make those conditions that you find to be appropriate under
general health and welfare standards.
Chairman Moyer inquired if Mr. Edward Doyle
would like to make any responses to anything said.
Mr. Doyle stated briefly stated that he found it
interesting that his testimony was cutoff but the Commission was very
concerned...and he quoted "are you comfortable with that" and
"would that give you what you need"...obviously this is not biased in
favor of the citizens it is biased as a way to determine how we are going to
get this project through.
Commissioner Messer made the motion that the
Board go out of public hearing. All voted in favor and the motion carried.
Discussion followed among the Commissioners with
respect to how they wanted to proceed. Chairman Moyer stated that the request
have been made with requests for indication as soon as possible. The maximum is
45 days to issue an order. Normally the Board proposes some findings of fact
and conclusions of law which gives everybody good indication and bring it back
at the next meeting after the actual wording has been put down to finalize it.
Chairman Moyer made the motion to approve the
application for amendment to develop vested rights and revise site specific
development plan for Biltmore Farms Hammond Tract subject to the conditions
that the Board has set forth which are staffs conditions except for the
following: a maximum of 305 multifamily units, maximum of 28 buildings and 112
units in the quadraplex, a maximum of 67 buildings and 201 units in the triplex
and complete flexibility to the developer below that with no minimums. He
further
motioned that the minimum for open space be 237 acres.
Commissioner McGrady stated that the Board is
providing staff with direction. They will come back with the form of an
appropriate amendment circulated to the parties and at that time it will be
placed either on our consent agenda or regular agenda.
Chairman Moyer stated that staff would come back
with findings of fact needed along with the conditions requested by the Board.
Russ Burrell stated that the findings of fact
along with the condition requested by the Board would be available for anyone
who wished to see it approximately 1 week prior to the September 17 meeting.
Chairman Moyer reminded the Board of the motion
on the floor. All voted in favor and
the motion carried.
ADJOURN
Commissioner McGrady made the motion for the
Board to adjourn at 8:25 p.m. All voted in favor and the motion carried.
Attest:
____________________________________
______________________________________
Teresa L. Wilson, Deputy Clerk to the Board William L. Moyer,
Chairman