MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON AUGUST 9, 1999

The Henderson County Board of Commissioners met for a special-called meeting on Monday, August 9, 1999. The purpose of this meeting was to conduct three public hearings: a public hearing for the Habitat for Humanity Grant; a quasi-judicial hearing on Creekside, Application by Mr. Maxie Small on a proposed Residential Open Space (R-O) Development, Special Use Permit Application # SP-99-02; and a quasi-judicial hearing on Charlestown Place, Joe Crowell Construction, Inc., a proposed Planned Unit Development (PUD), Special Use Permit Application E SP-99-01.

Present were Chairman Grady Hawkins, Vice-Chairman Bill Moyer, Commissioners Marilyn Gordon and Don Ward.

Absent was Commissioner Renee Kumor.

Staff present were County Manager David E. Nicholson, County Attorney Angela S. Beeker, Planning Director Karen C. Smith, and Planner Chris Timberlake.

Absent was Commissioner Renee Kumor.

PUBLIC HEARING

Chairman Hawkins made the motion for the Board to go into Public Hearing. All voted in favor and the motion carried.

Malcolm McCormick, Grants Coordinator for Habitat for Humanity, reminded the Board of the application summary which had been distributed to the Board for their review.

The Henderson County Chapter of Habitat for Humanity requested that Henderson County apply for a North Carolina Small Cities Community Development Block Grant on their behalf. Along with the Application Summary, the Board also received copies of the Project Overview and Project Costs for the grant.

The purpose of this meeting was to conduct a public hearing to give the public an opportunity to comment on both the activities and costs associated with the grant.

Mr. McCormick stated that the grant application is for infrastructure which would include streets, water, and drainage to serve 28 lots at the East Flat Rock development, a total of $176,322 plus administration and planning $31,500 for a total of $207,822. They committed to complete 15 homes within the 30 month time frame to which this CDBG applies. The CDBG must be closed out within 30 months after being awarded. Habitat for Humanity had been allowed to spread the infrastructure over a 28 home development because they already own the land. Therefore, Habitat for Humanity would not be asking Raleigh to help with the purchase of the land. These homes typically have approx. 1,000 to 1,100 square feet and are within line of what Habitat for Humanity has completed all over the County. Thirty-four homes have been completed thus far. Three homes were under construction at the East Flat Rock site. None of the infrastructure that they were applying for had been completed. Habitat would be responsible for all of the construction costs and all of the grant funds would apply to infrastructure only ($207,822).

Mr. McCormick explained that the mortgage for one of these homes would come down to $53,356 after deducting $11,755 for the grant money and deducting assistance from Federal Home Loan Bank of $6,000. The mortgage of $53,356 spread over a typical 20 year mortgage equals a monthly house payment of $222.32. Escrow for taxes would be approximately $40 a month and insurance would be approximately $27 a month. So a typical Habitat partner family would pay about $289 or $290 a month and would own the home after 20 years.

Mr. McCormick shared a copy of the layout of the homes. Habitat was currently progressing with three homes and hopes to start two additional foundations next week. Next year, hopefully after the receipt of the grant funds, they can let the contracts to put in streets, water, and drainage.

Chairman Hawkins stated that the Board had some discussions recently about affordable housing and this certainly fits the bill. Chairman Hawkins made the motion to authorize proceeding with the filing of the grant application and authorize the Chairman to execute the paperwork. All voted in favor and the motion carried.

Commissioner Moyer made the motion for the Board to go out of Public Hearing. All voted in favor and the motion carried.

QUASI-JUDICIAL HEARING ON CREEKSIDE

Chairman Hawkins announced the Board would conduct two quasi-judicial proceedings.

The first proceeding would be held on a petition of Maxie Small for Creekside, a proposed residential open space development in an R-20 zoning district. The second proceeding would be on the petition of Joe Crowell Construction, Incorporated for Charlestown Place, a planned unit development (PUD) in an R-10 district. Each required a special use permit under the Zoning Ordinance.

Chairman Hawkins explained that a quasi-judicial proceeding, much like a court proceeding, is a proceeding in which one=s individual rights are being determined. The proceeding would be conducted under the Henderson County Board of Commissioners= Rules of Procedure for Quasi-Judicial proceedings. Only persons who could demonstrate that they would be affected by the outcome by the decision were allowed to participate in the proceedings. All persons who would speak and participate, including any witnesses who would be called, would be placed under oath. Staff would give brief introductory remarks and then the Board would ask the petitioner what evidence he or she wished to present in support of the application for a special use permit. After the petitioner finished, anyone else who had expressed a desire to be a party and who the Board had recognized as a party would then be allowed to present their evidence. All parties would be given opportunities to ask questions of all witnesses testifying in the proceedings. The Board would be given an opportunity to ask questions also. After the evidence was presented, the Board would discuss the issues raised and make a decision. The Board=s decision must be made in writing within 45 days of the hearing.

Chairman Hawkins asked the County Attorney if there were any matters that the Board needed to address or resolve prior to identifying the parties and beginning the presentation of evidence.

County Attorney Beeker thanked Chairman Hawkins and stated, AFor the benefit of the Board and audience, I=d like to remind everyone that because this is a quasi-judicial proceeding the decision can only be based on things that are presented at this particular meeting. So things that might have occurred at the Planning Board meeting or any other place are really not going to be relevant so far as the Board=s decision. It=s going to be what=s stated at today=s meeting. It would also therefore be appropriate for the Board members to disclose if you have gained any knowledge regarding these matters outside of the proceeding today so that everyone can know this and address this as appropriate, you know, if it=s pertinent.@

Chairman Hawkins: AAnyone have any?@

Commissioner Moyer: AYeah, I do. Are you going to do these two together or as one hearing or as two separate hearings?@

Ms. Beeker: ATwo separate hearings. You can do it at the beginning of each particular proceeding.@

Commissioner Moyer: AWell, I was on the Planning Board when the subdivision request for Charlestown Place came through and when the request for Creekside and also when the discussions of the planning and development were held. So I did participate in those matters but I will make my decision based on the record as presented in this proceeding.@

Commissioner Gordon: AAnd I would likewise want to note that I was on the Planning Board at the time that Charlestown Place was presented to the Planning Board. I was not on the Planning Board when Creekside was presented, if my recollection is correct. I want to be sure that=s known.@

Ms. Beeker: AOK. The other thing that I would like to point out is that the application for both of these contains general and some specific requirements for the granting of the special use permit. These are things that any special use permit must meet. The general standards are stated first in the application and I want to state to you that the burden is not on the applicant to demonstrate that those have been met. The burden is on the applicant to show that the specific things have been met. OK? Back to the general, if someone who is a party brings forward evidence that makes it look like that general standard might not be met, then the burden would shift and be on the developer to prove. So for instance the public health and safety, if there=s no evidence that=s introduced that the public health and safety would be damaged in any way, then, you know, it=s going to be a given that it=s OK for that particular standard. Does that make sense? The burden is on the developer. Only evidence is introduced which would make it likely that one of those standards is not going to be met for the general standards.@

Chairman Hawkins: AAngie, on the specifics are you talking about things like density requirements or frontage and we=re going to discuss those?@

Ms. Beeker: AYes. Yes and the burden is on the developer to demonstrate the specific standards have been met and they are at the bottom of the application and then in the particular provisions for the residential open space, the particular provisions for that and then for the PUD, the particular provisions for that but just kinda keep that in mind as you=re going through the proceedings.@

Chairman Hawkins: AAnybody else have any questions for our attorney? OK, we=ll begin with the Creekside proceedings will be conducted first and that will be followed by the Charlestown Place and I=ll make a motion now that we go into a quasi-judicial hearing for the Creekside application for a proposed residential open-space development. All of those in favor of that motion, say aye. OK.@

All voted in favor and the motion carried.

Chairman Hawkins: AThe Board acknowledges the petitioner, Maxie Small, and staff as parties to the 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 of the proceeding? We have several folks. All those that are parties to, first we need to determine whether or not you=re party to the proceedings so I think we probably just need to ask each one to step up and if you would take the microphone, state your name and address and in what regards you=re a party to the proceeding. Sir, you had your hand up. You want to take the microphone? The Board will need to determine in each case whether or not you=re going to be a party to the hearing.@

NATALIE ANDRESEN, 27 Birch Lane-AI=d like to tell you about the problems and costs.@

Chairman Hawkins: AWe=ll do that in just a moment, m=am. First we have to determine if you=re a party to the hearing. Is your property adjacent to Creekside property?@

Ms. Andresen: AYes, it is.@

Chairman Hawkins: ADo we have, Karen are you going to talk to the adjacent property owners? Do you have that information for us?@

Ms. Karen Smith: AI don=t think we have them identified on here but we can go ahead and have them point to it.@

Chairman Hawkins: AM=am would you go ahead and point out where your property is in relation to the development for us?@

Ms.Andresen: AYes, yes. Peachtree Lane and Rich Lane goes right up to where the development will be. 27, right here.@

Chairman Hawkins: AIs that your property, m=am?@

Ms. Andresen: AI think so yes.@

Chairman Hawkins: AOur County Attorney, I guess that looks that is certainly is adjacent to it. Does anyone have any questions on allowing being a party to this? If you would just take your seat m=am. We=ll call you back in just a minute.@

Toms Kiska, 113 Longjohn Drive-@I=m Mr. Toms Kiska and I live on 113 Long John Drive and my property is right here at the creek. The creek runs right down through my property. Number 7, the creek is going to run right through my property.@

Chairman Hawkins: ADoes anyone have any objection to this gentleman being a party? Thank you sir, we=ll call you back in just a minute. Anyone else a party to the proceeding? Yes, sir, either one of you if you=d come up and state your name and show us where your property is.@

Mike Floyd, 234 Spice Wood Lane-AMy name is Mike Floyd and I=m at 234 Spice Wood Lane. My property does not adjacent this. I am the President of the Homeowner=s Association for Long John.@

Ms. Beeker: AIt=s up to the Board.@

Commissioner Moyer: ABut there are properties along Long John that back onto this proposed subdivision?@

Mr. Floyd: AThere most certainly are.@

Commissioner Moyer: AI think he should be allowed. He represents the people that are on there.@

Mr. Floyd: AI am the spokesman for those that are not here.@

Chairman Hawkins: AThat have property there?@

Mr. Floyd: AYes.@

Commissioner Gordon: AMy only concern, do you have, I guess I would have concern in what your charter is as President of the Association. Did you speak specifically with the property owners adjacent to this?@

Mr. Floyd: AQuite a few of them. We did have a meeting, a homeowners meeting, we did speak and you know, it=s pretty much it=s a unanimous feeling for the homeowners. And according to our covenants, what our covenants say in as far as what=s some of the things we=ve been approached and told about that we may have concerns as the development as a whole and not just as the individual properties.@

Commissioner Gordon: AThat=ll be alright.@

Chairman Hawkins: AOK, sir we=ll accept you as...Yes sir.@

TOM ASBURY, 107 Long John Drive-AI=m Tom Asbury, resident of 107 Long John Drive and my property abuts lots 15 and 16 on there. I back up to two lots in their development and I wish to speak. He mentioned a stream, we have two culverts on our road and I=m on the minor one but I=m going to accept, receive most of the water from their first section of development.@

Chairman Hawkins: AYou=re on a minor culvert? Alright. If you=ll have a seat, sir. Anyone else?@

JESSE ANN BOTERE, 181 Long John Drive-AMy name is Jesse Ann Botere. I live at 181 Long John Drive. I do not immediately abut the problem but some of the requests they=re making will have an impact on our development and on our traffic. I=d like to address that, if you=d please.@

Chairman Hawkins: AI think we have this gentleman here is homeowner, or represents the homeowners association. But your property doesn=t abut directly to it?@

Ms. Botere: ABut their request will have an impact on me.@

Commissioner Gordon: AI would be more comfortable if you gave your remarks to the president of the association and have them conveyed. Would that be appropriate?@

Commissioner Ward: AWhat do you think, Angie?@

Ms. Beeker: AIt=s within your discretion. Is it likely that your property value could be decreased?@

Ms. Botere: AI believe so, yes. It is my feeling the whole development will be adversely affected if certain provisions be allowed.@

Ms. Beeker: AOK. Can I make a general statement? As this is a quasi-judicial proceeding, general feelings are not going to be admissible. General feelings, because it is not direct evidence, as to whether they have met the standards or not and that=s for every party, OK, because it=s quasi-judicial. Under our regular legislative hearing, you could say anything you=d like to say but this has to be relevant evidence as to whether they=ve met the standards in the ordinance or not. Does that influence whether...?@

Ms. Botere: AThey=re asking for a special use that will have a definite impact on us and I feel I should be able to address that.@

Commissioner Moyer: AWhy don=t you let her make her statements to the point or extent that they=re not duplicated by the president of the association.@

Ms. Beeker: AHe could call her as a witness if she had evidence. The president could call you as a witness without you being a formal party so that you could still, you know, make statements to the Board, would that be acceptable?@

Ms. Botere: AYes@.

Chairman Hawkins: AI think the only difference being is some of the questioning as whether or not we question the parties but not the witnesses. So if you all can work those out. Yes m=am. Would you please come forward.@

Lynn Stafford, 220 Turtle Lane-AMy name is Lynn Stafford. I=m at 220 Turtle Lane. I do not directly abut the proposed subdivision but I am Vice-President of the Association and have been asked to just reiterate our covenants to you where it states that no other easements or rights-of-way or rights-of-access shall be deeded.@

Chairman Hawkins: AIf you would maybe just be a witness also and then, does that sound...?@

Commissioner Moyer: ADo you now belong to the Long John Association?@

Ms. Stafford: AYes.@

Commissioner Moyer: AThen it should be. You=re right.@

Chairman Hawkins: ARather than being a party to maybe just be a witness and your homeowner=s association president may want to call you for your information.@

JOHN PERRY, 2763 Haywood Road- AMy name is John Perry. My mailing address is 2763 Haywood Road. This is my property.@

Chairman Hawkins: AAlright, I believe we can accept you as a party.@

Ms. Corn: AI=m sorry your last name was Perry?@

Chairman Hawkins: AJohn Perry.@

Ms. Corn: AMr. Chairman, we had one other gentleman who signed up to speak who hasn=t come forward yet. Phil Ward. I thought we might want to clear that up.@

Chairman Hawkins: AAre you requesting to be a party to the hearing?@

PHIL WARD-AI=m Phil Ward, landscape architect, land planner on the project with Maxie Small. I didn=t know if I needed to sign in. I just did it.@

Ms. Beeker: AIs Mr. Small here? Will you be speaking on your own behalf?@

Mr. Small: AActually Phil will be doing the presentation or whatever the need be.@

Ms. Beeker: AOK. So Mr. Ward could be the party then and you could still be a witness. You just need to be sworn as well.@

Chairman Hawkins: AOK, we=ll accept you as a party representing Mr. Small. Anyone else?@

Commissioner Moyer: AWouldn=t we also want Mr. Small as a party?@

Ms. Beeker: AYou can do that too.@

Commissioner Moyer: AI think he should be a party, not as a witness. I think he should be a party since he=s the guy@.

Commissioner Ward: AHe needs to be a party because you can=t question the witness of other parties. Isn=t that correct?@

Commissioner Moyer: AThat=s right.@

Chairman Hawkins: AWould you like to request to be a party also Mr. Small so that we can have some questions for you?@

Mr. Small: AAlright, we=ll accept you as a party and your representative also since he=s your architect. OK. Yes m=am.@

DORIS WASHBURN, 28 Peachtree Lane-AMy name is Doris Washburn, 28 Peachtree Lane and our property abuts that property.@

Chairman Hawkins: AAlright, m=am, we=ll accept you as a party since you have an abutting property. Anyone else party or witness to the proceedings?@

Commissioner Moyer: AYou might want to remind them that no one can speak if they=re not a party or witness.@

Chairman Hawkins: AJust remember when proceedings start, if you are neither a party nor witness to it then we won=t be taking comments from you. Just so you=re aware of that. OK, at this time, this is going to be the real drill, all parties to the proceeding needs to come up and be sworn in and witnesses. I think Ms. Corn has a couple of Bibles over here. Of course, staff and I think that everyone so if you could just kinda get friendly over there and...@

Ms. Corn: AIf you would situate so that you can get your left hand on one of these Bibles. Put your left hand on the Bible, raise your right hand. This one little lady needs in somewhere. She needs to put her hand on the Bible. Do you swear or affirm that the testimony that you shall give to the Board of County Commissioners shall be the truth, the whole truth and nothing but the truth, so help you God? Thank you@

Chairman Hawkins: AMs. Corn do you have everybody=s name?@

Ms. Corn: AI do.@

Chairman Hawkins: AThank you all for going through that little bit of the proceedings. We=ll begin with some introductory remarks by the staff. Karen are you going to do that for us?@

Ms. Smith: AThank you Mr. Chairman. At this time, I=m having Chris Timberlake pass out a copy of the agenda item that you=ve already received. Chris, the Board has those. Any of the parties that would like a copy, could you kind of wave your hands for Chris to get that to you?

Creekside is a proposed residential open-space development located off North Carolina Highway 191 or Haywood Road between Long John Mountain Estates and Carriage Park. The total tract size is 48.8 acres. It is divided into two phases. Phase I being 21.6 acres and Phase II being 27.2 acres. Sixty-four single family lots are proposed for the development, thirty-one in Phase I and thirty-three in Phase II. The property is zoned R-20 and R0 developments are allowed in our 20 districts as a special use. Section 200-35 of the Zoning Ordinance provides the requirements for R0 developments . The purpose of R0 is to preserve open-space. Approximately 30% of the acreage in the development is proposed to be preserved space as required by the ordinance. There is also a .88 acre green that has been proposed but because it=s less than one acre it=s not being counted as part of the required open space.

We have several reduced copies of the plan in your packets. We also have this color version that the applicant has provided for us. Just for some other basic information, R20 would allow a maximum of 106 lots at 20,000 square feet each to be developed on the subject property. A total of 64 lots have been proposed. The R0 provisions of the Zoning Ordinance allow reductions in dimensional requirements depending upon the amount of open space provided. In this development, because at least 30% of the total tract is being, 30% of the total tract being subdivided is open space, each dimensional requirement can be reduced by 30%. This means that you can have minimum lot sizes of 14,000 square feet, front yard set backs of 35 feet from the road center line, and side and rear set backs of 17 and a half feet. Although reductions in dimensional requirements are allowed, the total number of units cannot exceed what would have been permitted under R20 if the R0 provisions were not being considered.

I would like to add that today=s hearing has been advertised in accordance with State law and the Henderson County Ordinance.@

Chairman Hawkins: AKaren did you address the density, if you did I missed it.@

Ms. Smith: AThat=s part of the whole plan. The minimum lot size in R20 is ordinarily 20,000 square feet but you can actually go down to lot sizes of 14,000 square feet because 30% of the development is shown as open space. That doesn=t necessarily increase the number of lots that you can do. It just allows you to cluster those lots in a smaller area and leave the rest as open space thereby having smaller lot size. The overall density of the project stays the same.@

Chairman Hawkins: AMr. Small, at this time if you would present your evidence and I guess Mr. Ward are you going to do that for him? Alright.@

Phil Ward: AMr. Chairman and members of the County Commission, I appreciate the opportunity to come before you. I got involved in this project about five months ago and looked at the property, as you may know, is an old farm, part of the family farm, for years the, Bowen family. So this is being developed by the family members. They have a tremendous concern for the property and how it=s developed and they approached me and wanted to do something that=s of high quality, something that would preserve the open space and preserve the creeks and fortunately the County Ordinance provided an R0 zone which is what we=re asking for rural open space so that we could do what we wanted to accomplish anyway. Most of the creeks are going to be contained in designated open space. And that=s shown by the dark green here. The main creek which is Brittain Creek, runs through here. That=s all going to be contained designated open space areas. There=s also a tributary creek that comes from Highway 191 and cuts through the property into Long John Mountain Estates. Both Brittain Creek and this tributary creek do go into Long John Mountain Estates.

The idea behind this thing is to create a community atmosphere with the central green being a common park or a vocal point as you enter the development. It=s nearly an acre in the center of the property. And then surrounding would be designated open space with a trail system to be used by all the home owners within it.

As it was mentioned, you could have about a hundred units in here under the R20 zone. We=re asking for 64 units which is a substantial amount less. The stream is being contained in open space and will be protected that way. It won=t be each individuals, it will be owned in common by all of them and preserved in its natural quality which will help filter storm water and maintain the character that is there right now.

The adjoining properties, since I adjusted this, since there are so many people here from Long John Mountain Estates, the culverts that go under the road that accesses Long John Mountain Estates, there is a six-foot diameter culvert that is for Brittain Creek existing there and there is a thirty-six inch culvert for that tributary creek. Both of those culverts are sized by my calculations to handle the 25-year storm which is what we designed this project and this storm drainage for. Being in the watershed zone, 25-year storm is generally what you design a subdivision like this for so it meets those requirements.

The subdivision roads will all be a valley, curb and gutter, 26 foot road section with valley curb and also concrete sidewalks will be on one side of the main roads. The entrance road off Highway 191 will have a sidewalk on both sides and will be a 34-foot road section. So we=re trying to create a neighborhood, almost a downtown type neighborhood out here. The architectural control will be extensive and what we=re trying to do is create a harmonious development that will be flowed together harmoniously both architecturally and from the land planning standpoint.

At this time, I can entertain any questions you might have.@

Chairman Hawkins: AAngie do you want to, I=m trying to follow your sequence here. Do you want those questions now or do you want to wait until after we get through or after each one?@

Ms. Beeker: AIf the Board has any questions, it would be appropriate to ask at this time and then it would be appropriate then for anyone else if they have specific questions of Mr. Ward to ask them at this time.@

Chairman Hawkins: AAny questions for Mr. Ward?@

Commissioner Moyer: AI have a few. Mr. Ward, your roads will be public roads?@

Mr. Ward: AYes.@

Commissioner Moyer: ASo all of your roads and the shoulders and the culverts have to be built to State specifications. Isn=t that correct?@

Mr. Ward: AThat=s correct and they=ve all been reviewed by the D.O.T and have been accepted. The only thing we=re waiting for is from Raleigh is they had to send it to Raleigh as far as the access to Haywood Road. They=re debating whether we need a left turn lane or not. That=s the only thing we=re waiting on. They=ve approved the access location and the interior roads.@

Commissioner Moyer: AYou=ll be disturbing more than an acre so you=ll have to file a soil and water erosion plan as well, correct?@

Mr. Ward: AAnd that has been done and we already have a permit for Phase I, a grading permit.@

Chairman Hawkins: AIs this located in the watershed area, it=s still far enough up to be in it? Are there any special requirements that=ll be applicable here because it is in a watershed area as far as you know?@

Mr. Ward: AThe density issue, not exceeding two units per acre.@

Chairman Hawkins: AJust the density? Any other questions from the Board?@

Commissioner Moyer: AYeah. On the plat, the one that I=m looking at shows a reserved area behind your open space. Would you clarify what this is for me?@

Mr. Ward: AYes, that=s been removed and made part of open space.@

Commissioner Moyer: AI didn=t see that. So that=s no longer...?@

Mr. Ward: AThese lots right in here were made slightly larger and this area that was reserved is now part of the open space. So there=s no, no access off of Long John Mountain Estates or anything requested.@

Commissioner Ward: AHow steep are those? What=s being reserved, the larger lots in your...@

Mr. Ward: AIt probably varies from 25% to 50% slopes.@

Commissioner Moyer: ASo on your road since you=re building to State spec., you=ll have nothing that exceeds 18% grade, is that correct Mr. Ward?@

Mr. Ward: AThat is correct.@

Commissioner Moyer: AWhat is the highest grade you have, do you know?@

Mr. Ward: AThere is one road area there has a 17% grade for not a real long section.@

Chairman Hawkins: AAny more questions?@

Commissioner Moyer: ANo I don=t have any.@

Chairman Hawkins: ADon, do you have any questions? Anymore questions?@

Commissioner Ward: AOn, you addressed the creek situation, how does that affect lot 10 and 11? Can you be a little more specific on your culvert right there? You=re going to your six-foot culvert, so actually the only thing it=s affecting is the bridge?@

Mr. Ward: ARight, just the bridge, it=s proposed to have a bridge, one bridge to access both lots.@

Chairman Hawkins: AAny other questions, Don? Any other parties to the proceedings have questions for Mr. Ward? Yes, m=am, I=m sorry you=re a witness, you=re not a party to the proceedings. This gentleman is the party and we=ll take his question.@

AI=m Mr. Kiska and I have a couple pictures here of my property that=s right at that six-foot culvert.@

Ms. Beeker: AHe needs to wait.@

Chairman Hawkins: AOK. Sir, you might need to wait on that. If you have, we=ll get those when we call you but if you have a specific question for the Board...@

Mr. Kiska: AYes, it=s pertaining to this, I mean this relates to the water coming, the creek coming down. Now Carriage Park empties out onto their development there. Now, I=ve had, here I=ll show you here.@

Chairman Hawkins: ALet me confer with our Attorney just for a moment. Wait let=s get our stuff in sequence here. Hang on just a second.@

Ms. Beeker: AI believe that he said his question was going to...@

Chairman Hawkins: AIt pertains to water under.... OK.@

Mr. Kiska: ANow this one here, this is here when we only have two inches of rain coming down. This other one is a small rain and the water comes up about two and a half feet by six feet wide. Now when Carriage Park....@

Commissioner Moyer: AWait, before you go any further, let=s identify where the pictures were taken, specifically where they are and what time you took the pictures.@

Mr. Kiska: AWell, I can=t show you the culvert here, but this is about fifteen feet from the 6-foot culvert.@

Ms. Beeker: AWhere?@

Chairman Hawkins: AOn Long John, on your side of the property?@

Ms. Kiska: AThis here, right here is the culvert. Right here is the culvert and this is the fish pond that I have over here. The water runs down here and it goes into the culvert. OK? Now when it rains this is a little, there is only two inches, right now today I think there is two inches of rain in there or two inches of water. When it rains, I get from four inches, no from two and a half feet up to, almost to the top of that wall here. Now that=s water coming now. Now I want to know what=s going to happen when you build the homes there and this isn=t saturating into the ground, what=s going to happen to the excess water that=s coming down?@

Mr. Ward: AWell, it=ll run down the creek.@

Mr. Kiska: AIt=ll run down but will it go over into my fish pond there?@

Mr. Ward: AThat I can=t answer. I=ve not studied your lot in particular.@

Mr. Kiska: ASee I have no, no restrictions upon building the development but I want to know what=s going to happen to the water coming down.@

Chairman Hawkins: AThank you sir, I don=t believe he=s able to answer your question right now. Are there other specific questions? Yes sir.@

(I can=t tell for sure who=s speaking but I believe it is the President of the Homeowner=s Association) AI guess I have to address this question to Mr. Ward. Now we=re talking about the reserve lots, this has been taken out, that=s been eliminated? And how about these lots right here?@

Mr. Ward: AThey=re access.@

Gentleman: AThey=re access.@

Commissioner Moyer: ACould you identify those for us?@

Chairman Hawkins: ACould you show them on this map here if you would?@

Gentleman: AOK, we=re talking about reserve lots that were right in here and these two lots right here.@

Chairman Hawkins: AAnd what was your question?@

Gentleman: AThe question was because there was no access that=s was where our question and concern was being that they=ve shuffled that and there=s access from here, we basically don=t have any other complaint other than what would be with the watershed.@

Chairman Hawkins: AOK sir, thank you.@

(Another man): AAs long as we=re talking water, may I speak?@

Chairman Hawkins: AIf you have a specific question of Mr. Ward, otherwise we=ll get you in a few minutes. Do you have a specific question for him?@

Gentleman: AWhy don=t I wait.@

Chairman Hawkins: AAlright, sir. Any other specific questions for Mr. Ward at this time? We=ll be cycling back through so we=ll get all your questions in here somewhere. Yes, sir, you had another question?@

Mr. Floyd: ACould we get an update on this plan that where that has been eliminated that we=re satisfied with for the homeowners?@

Chairman Hawkins: AI think that would be part of what=s filed with the Planning Board so I=d think the answer to that would be yes, certainly. Any other questions at this time of Mr. Ward?@

Commissioner Moyer: AI have one other, I have. Mr. Ward have you studied at all what the effect of the development will be on the water runoff with respect...? Has the State made you look at that with respect to the size of your culverts and things like that? Can you give these people a feel for what the effect will be?@

Mr. Ward: AThe State, what we look at is what the down stream culvert capacities are and that=s what we looked at. As I mentioned there=s a six-foot and a thirty-six inch culvert. Those were sized to handle future development on this property according to my calculations. Also the D.O.T. in their hydraulics division checks my calculations. They came up with the same thing I came up with in my phone conversation with them after they had reviewed my drawings and my calculations. So that=s the extent of the studies to determine that the downstream culverts could handle the flow.@

Commissioner Moyer: ASo the study though has demonstrated what, just so you state it, what has the study shown?@

Mr. Ward: AThe study has shown that the two culverts that are in Long John Mountain Estates can handle the twenty-five year storm runoff with this project being developed.@

Chairman Hawkins: AOK, any other questions for Mr. Ward at this time? Thank you sir. Any staff evidence at this time, Karen?@

Ms. Smith: AAgain we=re going to be passing some items out, if you can bear with us for a few minutes. What Chris is going to be passing out is a copy of the Planning Board=s recommendation, a copy of staff comments which includes my opening comments in the Planning Board recommendation but you=ll have, you=ll be able to put our comments next to the Planning Board=s. He=ll also be passing out relevance section from the three ordinances under which this development has been reviewed, the Watersupply Watershed, the Subdivision and the Zoning Ordinance. I didn=t know if you=d have yours in front of you so we=ve run those and we=ll have them for the parties as well. In speaking with Chris just this minute, I didn=t realize that you did not have the revised plan in your packet. So Jennifer is running copies of the revised plan which you=re looking at.@

Chairman Hawkins: AIs it current that=s in the code?@

Ms. Smith: AIf you=ve got a code book, you won=t need the sections that we=re passing out.@

Chairman Hawkins: AWill you give us just a minute to read through these before we continue?@

Ms. Smith: ACertainly.@

Chairman Hawkins: AIs this the revised plan that has that reserve area done away with?@

Ms. Smith: AThat=s right.@

Ms. Beeker: AKaren, do you have the minutes from the Planning Board meeting?@

Chairman Hawkins: AKaren, if you would continue please.@

Ms. Smith: AAt this time, what I would like to do is review for you the Planning Board=s recommendation. I am having the secretary to the Planning Board prepare minutes at this moment. I didn=t know if you would need them but we=re going to have them to you before the end of this session. The Henderson County Planning Board reviewed the application for Creekside in accordance with the Henderson County Subdivision Ordinance, Watersupply Watershed Protection Ordinance and the Zoning Ordinance on May 25^th, 1999. The Planning Board has made a favorable recommendation to the Board of Commissioners subject to the following conditions being included in the special-use permit. You have a copy of a memorandum from myself which outlines the Planning Board=s recommendation and for the record I=ll proceed through that if that=s alright with the Chairman.

With regards to the Subdivision Ordinance, the first condition is has to with the erosion and sedimentation control that the applicant should provide evidence of a soil erosion and sedimentation control plan has been approved by NCDENR Land Quality section. What I=m going to do is when I get to staff comments, I=m going to review which of these have been satisfied. I=m going to read as it was done by the Board.

Condition 2, water plans. The applicant should provide evidence that water plans have been approved by NCDENR and the City of Hendersonville Water and Sewer Department.

Three, sewer plans. The applicant should provide evidence that sewer plans have been approved by NCDENR and the City of Hendersonville Water and Sewer Department.

Four, street disclosure statement. A recordable document of the proposed subdivision streets disclosure statement should be submitted to the Planning Department.

Five, has to do with development plan details. The applicant should submit a revised Phase I development plan which shows proposed road names approved by the Property Addressing Office and the direction of flow for Brittain Creek. This should also be shown on the master plan.

Number six, fire hydrants. All lots shall be within 1000 feet of a fire hydrant with a minimum flow of 750 gallons per minute. The location of the proposed fire hydrant should be shown on the development plan.

Number 7, public roads. All roads proposed for public use shall be annotated public on plans and plats and shall be designed and constructed in accordance with the standards necessary to make the roads eligible to be put on the State highway maintenance system at a later date.

Number 8, major subdivision requirements. Sections 406 and 409 of the Subdivision Ordinance regarding shoulder stabilization and road name and regulatory signs shall apply to the proposed development.

Number 9, special use lots and common areas. The reserved area shown in the southwest portion of the development should be addressed. If it is a remaining lot, it needs to meet the requirements for right-of-way access and other standards in the Ordinance. If it is for some other purpose, such as open space, recreation areas, etc. such use should be clearly identified on the parcel.

Number 10, special use permit approval. Master plan, Phase I developmental plan approval by the Planning Board and Phase II development approval by the Subdivision Administrator or the Planning Board if applicable to be contingent on approval of the special use permit. In addition, all conditions imposed on a special use permit shall be satisfied prior to any approval of any final plats by the Subdivision Administrator.

The next set of comments have to do with Watersupply Watershed Protection Ordinance. All the property in the proposed development is within the WS4 Watershed Protection area which requires minimum lot size of 20,000 square feet. However, cluster developments are allowed in the WS4 area provided that if the lot sizes are less than the minimum lot size required, open space must be dedicated within the same watershed area and parcel to offset the lot size requirements. And this has been done through this open space development. The one comment under the Watershed Ordinance then is notes on plans. The applicant should submit a revised a master plan that deletes the Watershed boundary which is shown as well as the note regarding the size of the watershed and other related information. A new note should be added which indicates that all the properties in the WS4 Watershed Protection area.

Finally, comments with regard to the Zoning Ordinance and you do have copies of these relevant sections which I distributed, and just a note here that there is a portion of the property which is within the City=s extraterritorial jurisdiction. It=s a very small area. City Planner Roger Briggs did write a memo to our Department and the Planning Board stating that they are administratively relinquishing all review authority for that little portion.@

Chairman Hawkins: AKaren, could I stop you because I had a question about that. Roger Briggs is he, does he have the authority to relinquish ETJ control on his signature?@

Ms. Beeker: AIt was going to be my suggestion that you make as a condition of the permit that the City by whatever mechanism their Ordinance requires formally bless their 5% as a condition. I don=t, unless this is complete within his jurisdiction to review, I don=t think he can quote administratively relinquish it.@

Ms. Smith: AI don=t know, Angie. We asked him his opinion and that=s what he gave us. Comments under the Zoning Ordinance has to do with zoning compliance that no zoning compliance shall be issued by the Zoning Administrator until at least 75% of the open space is shown on the plat are in existence and have reached the plan stage of development shown on the plat and described in the application and accompanying instruments. And at this time, let me distribute a copy of the covenants. I don=t believe you received those in your packet and I=ll give them to you now and then I=ll reference them in my comments as well.

Staff would like to add a majority of the conditions that the Planning Board has recommended to you were based on comments staff made at the May 25^th Planning Board meeting in a memo to the Planning Board and through the discussion. And therefore we would want to note that because most of those were generated by us we do support the Planning Board=s recommendation.

We would like to also point out the conditions that the applicant has satisfied in whole or in part. These are as follows: regarding the Subdivision Ordinance, comments, condition number 1, erosion and sedimentation control. The applicant has submitted a letter of approval from NCDENR for the erosion and sedimentation control plans. Therefore, this item has been satisfied.

Condition number 5D, Development Details. The applicant has shown the direction of flow of Brittain Creek on the master plan and Phase I Development Plan. These were revised plans.

Condition number 6, a portion of that regarding fire hydrants. All lots are now located within 1000 feet within of a fire hydrant as shown on the revised Phase I Development Plan.

Condition number 9, special use lots and common areas. The applicant has removed the reserve area from the master plan.

Regarding the comment on the Watersupply Watershed Ordinance. Condition number 1 notes on Plans. The applicant has deleted the watershed boundary shown on the previous plan and has included a note on a revised plan saying that all property is in the watershed for protection area.

As Ms. Beeker noted earlier, there are some specific conditions that are applied to special use permits. You have those in the application. The general conditions are that the use would not adversely affect the health and safety of persons residing or working in the neighborhood and that it will not be detrimental to the public welfare or injurious to property or public improvements in the neighborhood. The Board has the ability to designate conditions to show a conformance with the requirements and the spirit of the Ordinance. You can in making your findings determine if satisfactory provisions have been made for ingress and egress, off street parking and loading, utilities, buffering, playgrounds, open spaces, yards, access ways and pedestrian ways and buildings and structures. Unsatisfied conditions recommended by the Planning Board and any other items deemed necessary by the Board of Commissioners may be listed as conditions to the special use permit.

That concludes staff comments. I=d be happy to answer any questions.@

Chairman Hawkins: AIs there any parties to the proceeding that has any questions for Karen?@

Commissioner Moyer: AI have a question for Karen. Karen, on the revised plat that you provided to us, I guess it=s dated, looks like 7-16-99, you=re showing only one access to this development, is that correct?@

Ms. Smith: AThat=s correct.@

Commissioner Moyer: AAnd where is that off of?@

Ms. Smith: AHighway 191.@

Commissioner Moyer: AAnd is it not true that any proposed access to anywhere else would have to be shown on this plat and approved by the Planning Board and the NCDOT?@

Ms. Smith: AThat=s correct. I think under the Planning Board Subdivision Ordinance that would probably be a significant change, if they were to change it from this revised plan.@

Commissioner Moyer: AIt would be a change in the master plan which would have to be re-approved?@

Ms. Smith: ARight.@

Commissioner Moyer: ASo this is the only access to the development as shown?@

Ms. Smith: AYes.@

Chairman Hawkins: AAnybody else on the Board have a question? Yes, Angie.@

Ms. Beeker: AI=d like to ask her a couple of questions on your behalf, if I might. Karen, have you reviewed this revised plan?@

Ms. Smith: AI have not. Chris Timberlake in our Office has.@

Ms. Beeker: AOK. Is he going to speak?@

Ms. Smith: AI=m speaking for him mainly because he was off last week. He can answer questions however.@

Ms. Beeker: AOK. Was he sworn?@

Ms. Smith: AYes.@

Ms. Beeker: AOK, I=ll get him later. The one thing, were you present at the Planning Board meeting?@

Ms. Smith: AYes.@

Ms. Beeker: ASo it=s your testimony that those were...?@

Ms. Smith: AYes.@

Ms. Beeker: AOK. That=s all I have for you.@

Chairman Hawkins: AAnybody else? Any of the parties to the proceeding have any questions for Karen? Yes sir, would please come up and ask your question in the microphone for us.@

Gentleman: AOn the material that you have indicated, I don=t know how you=d reference this, Item 7 says prior approval to the drainage plans along with all calculations used as assigned drainage for this subdivision as regulated by the subdivision road manual shall be submitted along with the site plans. Is that a part of the proposal?@

Ms. Smith: AThe memo he=s referring to is the comment sheet from Ed Green from NCDOT and that, when he says submitted, he=s referring to submitted to D.O.T and I don=t know, I do not know the answer.@

Gentleman: AThat is not one of your recommendation that be a part of this submission?@

Ms. Smith: AIt=s not required by our ordinance, that=s a requirement by D.O.T.@

Chairman Hawkins: ADid that answer your question, sir?@

Gentleman: AI think so, yes.@

Chairman Hawkins: AAny other questions from any of the parties? M=am are you a party to the hearing? I have forgotten. Yes, m=am, would you come up and ask your questions, please.@

Ms. Beeker: ACould she state her name again for the record?@

Chairman Hawkins: AWould you restate your name, please.@

Lady: ANatalie Andresen at 27 Birch Lane. My property has a spring, a natural spring on it. And that fact has cost me a lot of money over the years. I have a pipe under my driveway, and I have just recently replaced that pipe and through the years there have been, well the water just overflows and it=s a problem. I don=t know what building, I=m just very close adjacent to the building process, and I=m concerned that maybe water directions will change when buildings occur. I don=t know.@

Chairman Hawkins: AI don=t know if Karen can answer that particular question for you.@

Lady: ANo, but I brought my notes and I have spent thousands and thousands. I just recently had McMinn excavate and Tarheel will black top and new pipes, always new pipes but the water is there.@

Chairman Hawkins: AAlright. Thank you m=am. Any other questions for Karen? At this time, I would like to ask any additional parties, if you=re an additional party, if you have evidence that you want to present at this time, if you=d take the mike and sir I think you had some.@

Gentelman: AI=m Tom Asbury, 107 Long John Drive. I live in the fourth house on Long John Drive and directly abut as I mentioned two lots. And between my property 107 and my neighbor 109, this small stream that was mentioned with the 36-inch culvert passing under Long John Drive will definitely affect us. I=ve studied the plan. There are 29 houses, no there are 31 lots, planned for the first phase of development. And it=s interesting that all the drainage from Long John, no from 191 and from these lots. Of the 31 lots, 10 of these lots will drain to Brittain Creek which has the larger bed and the bigger culvert and 21 of them will drain into our small stream. When we moved there 20 years ago, it was a pasture with cows in it and if you drive up and down it, it=s changed. It=s a woodland now. And this is absorbing water slowing it down. I want to ask the developers, and may I say, I=m in favor of the development, I=m pleased it=s a single home development rather than condos or apartments which we envisioned might appear, but this drainage problem will seriously impact our property and the other one. The present stream which comes off their property impacts ours directly. A right angle turns it goes to the west about 25 feet and another right angle diverts it back into its original channel. It=s a very unnatural development. It may have happened when our area was developed. So that I get a, there=s always water flowing in that stream. It may be a trickle but it never goes dry. I keep brush and logs in that where the stream flows in. It bounces off that, heads for Mr. Merritt=s lot and he=s had quite a few feet undermined by the stream as it tries to turn, as it=s creating a bed that will turn it to continue out to the south. I would like the developers to seriously consider realigning the drainage of this channel. They have a 15-foot undeveloped strip that they have between the property and the actual end of the Bowen farm. If somehow instead of this double-dog leg, I call it, angle the stream back in their property so it would come in at a less acute angle as it enters the division between the two streams because once all that drainage from the roads and those homes ends up in that small stream bed, we=re going to see it digging itself down and digging itself, and increasing its bank to hold it. One last thing, about twelve years ago we had a severe heavy storm that came in a short time, heavy rainfall and at that time it picked up all the brush back of the little ravine, gulleys and stream bed, moved it down and it blocked the culvert where the water entered. So thoroughly was the debris and silt that in two hours it rose, it was running over Long John Drive. It created a lake across Mr. Merritt=s lawn and back very close to the foundation of his house. He has a workshop and family room there and it came up within probably six inches below our entry into our house which would be the basement floor. It was remarkable the amount of water that suddenly appeared from filling from one house, almost from one house to the other and back to the Bowen Farm property.@

Chairman Hawkins: ASo you=ve had a flooding problem there already?@

Mr. Asbury: AWe=ve had a sudden dam with the debris and we have had the quick rise up of water. I couldn=t dislodge it and we called the County and they got a crew there and they had to pull that out against the pressure of all the water that is was holding. It is a potential dangerous spot.@

Chairman Hawkins: AThank you. Any additional parties evidence, if you are a party to the proceedings. Sir, do you have something you want to bring up? Yes, sir, for parties evidence. And then we=ll have some rebuttals.@

AI=m John Perry. As I said before I have concern with a couple of things. One is as I indicated my property is in the middle. I=m bound on the other side by Carriage Park and when we had the Carriage Park hearings I was here and it was indicated that there would be buffers, adequate buffers, and my comments at the time were this constituted mature trees which provided no real buffer at all. It=s just tree trunks. I had someone stop by my house and ask me about a car that was on my property that wanted to buy it which they saw from that road which that could happen I suppose but there=s no buffer from the tree property. Will there be buffers between, is a part of this ordinance to include buffers for adjoining property owners?@

Chairman Hawkins: AKaren, you want to answer that? The buffer requirement@

Ms. Smith: AThere are no specific buffer requirements in the R0 section of the development, excuse me with the Zoning Ordinance.@

Mr. Perry: AIt is my understanding that the County Commissioners could entertain requests and would consider placing requirements for such as a conditional part of the permit. Is that correct?@

Chairman Hawkins: AI think that=s probably allowed under the conditions if the Board should so choose.@

Ms. Beeker: AIt would be appropriate to have the developer respond to that, I think.@

Mr. Perry: AI would like to request that such, I would request that such a requirement be placed upon the developer. Second, we have the road is identified, that I use, for access is identified as McCarson Road. And the property I have was conveyed to me by the previous owners of the Bowen Farm subject to access through that road. In the declaration page for the Creekside, mention is made of easements and I would like for some reference made to the easement for the road accessing my property as well.@

Chairman Hawkins: AAlright sir. Do you have any other comments at this time? Mr. Ward if you don=t mind at this time, I=d like to ask you to respond to a couple of things just to get us caught up. One is the realignment of the drainage that was previously mentioned. And if you could address from your perspective the buffer and I think in that one area, the white area there that Mr. (?) wants to and then the easements and I=ve not read all the protective covenants but maybe you can highlight that some for me or Mr. Small one. Would you hit those three areas?@

Mr. Ward: ALet me talk about the drainage issue first of all. If I understood the gentleman, he would like to see the channel realigned to straighten it out. Is that correct? Alright. Because of the fairly recent changes in the laws from the Water Quality in Raleigh, they frown very much on channelizing streams. They like the meander, it filters the water better. So from that standpoint we=d be fighting a tough battle just to get approval to do that. OK? What I would suggest as we get, I=ll look at your property and just what you got there. I=m going be out there and I=m just going to go over there and look at it and see what that is. That=s all I can say there. Now as far as debris clogging the culvert, that could happen. I mean you know with a bad storm and trees fall down that could happen anywhere. It=s unfortunate that happens but that will cause clogging of the culvert and backing up but hopefully that won=t happen too much. So that=s just the problem. It doesn=t usually happen but if you get an unusual storm where it dumps all this in the creek, it could happen. Now a 36-inch culvert is a fairly good size. It=s, it would normally pass most of that debris through but yet a big tree or whatever would get lodged and not go through it and would do that. Now the buffer, the lots adjoining Mr. Perry=s property are fairly deep so that in itself would really be a buffer because the houses are going to be built closer to the road. This road frontage is towards the downgrade, is away from various property. I would think that would be enough to satisfy for a buffer rather than designating a specific buffer. So who owns that strip or who maintains it? Do you give it to the home owner or it is just a nuisance strip that is maintained by the developer? I=d say the lot depth handles that issue there.@

Commissioner Moyer: AMr. Ward, I haven=t had a chance to go through your protective covenants but do you require someone to approve clearing of the land by people that are going to build on it or develop it?@

Mr. Ward: AThe way it=s being handled now, I guess, is the developer is developing the property and is also going to build the houses and will be clearing each house site too. So each lot will be looked at individually as far as which house is going there and how it=s to be cleared.@

Commissioner Moyer: AWhat I was getting to rather than a buffer could you possibly agree not clear within x number of feet of the property line so that you would have a natural strip left?@

Commissioner Ward: ADeed restrictions.@

Commissioner Gordon: AWasn=t, did I notice something in those deed restrictions that required approval for cutting anything over 12 inches in diameter by the property owners? Was that in there? Yes. So that would help protect the larger trees.@

Gentleman in audience: AOne other question, I would like to ask. Fencing up along Long John now. Could you put fencing there? At the moment, there is barbed wire and all the posts are down and everything. Are you going to put fencing along there?@

Mr. Ward: AAlong Long John Mountain Estates?@

Gentleman: AYeah, on that side.@

Mr. Ward: ARight now, we have a buffer along there.@

Gentleman: AYeah, but no fencing?@

Mr. Ward: ANo fencing.@

Gentleman: ABecause all the barbed wire in back of me is down and the old posts are rotten and coming down.@

Mr. Ward: ANo fencing is proposed. We do have the buffer there. Hopefully that will be better than fencing.@

Chairman Hawkins: AMr. Perry, you had another question? I=m sorry, Libby did you get his name? Mr. Kiska. Wait >til our secretary catches up with us. Are you with us Libby? OK, Mr. Perry you had another question?@

Mr. Perry: AWell, I understood, if I could be refreshed in my memory, is the setback requirement at the rear lot is very small setback requirement and absent any stipulation. I noticed there is a buffer on other sides of the property. Absent any restrictions or enjoinment I would not have any protection of my property due to the width of the very small set back on the rear of the lot requirements. I don=t believe that would provide a buffer.@

Chairman Hawkins: AThank you. Do you have any other comments on the buffering Mr. Ward at this time in the back other than that? Bill, did you finish your thought process there as far as the cutting of the current trees?@

Commissioner Moyer: AWell, Marilyn is correct, it does require that approval for anything more than twelve inch diameter on page 5 and as Mr. Perry mentioned the rear yard set back is 18 feet. And what I was wondering if you would leave a natural area, not any fencing, not any buffering, but leave a natural area of a bigger distance that would provide a natural buffering along the outside edge of your development, whether you would consider that.@

Chairman Hawkins: AAt least in that area I think where Mr. Perry is. Apparently, you=re going to be building fairly close to the front of the lot there, Mr. Small, is that correct?@

Mr. Small: AThat=d be the plan, yes. I think maybe we could put something on the plan here that shows an area of undisturbed vegetation at the rear of those lots if that would be satisfactory. We certainly wouldn=t do it within 18 feet of the property line because of the lot size. I mean because of such things as sewer lines, water lines, driveway access and things like that.@

Mr. Ward: ASometimes, what we=ve, what I=ve done in the past on other projects, is actually, don=t designate a buffer area but put an easement through the lots, maybe it=s twenty feet. It would be a non-disturbance easement maintaining natural vegetation but it would still stay with the lot.@

Commissioner Moyer: AWell that=s what I was looking for if you=d agree to that. Well, absolutely, absolutely stay with the lot but it would be undisturbed and natural.@

Mr. Small: AI think that would be fine.@

Chairman Hawkins: ADon, did you have a comment?@

Commissioner Ward: AThat was it. I was thinking of easement.@

Commissioner Gordon: AMy only question I guess on that would that there are only, we=re only talking about six lots there that directly connect Mr. Perry=s, well one of them is a cemetery though, isn=t it?@

Chairman Hawkins: AYeah, that one up at the right hand corner as we look at it.@

Commissioner Gordon: AYeah and well there=s a couple of them that are, one=s fifteen thousand and one=s sixteen but the other four or five are pretty well within what=s already the zoning allowance for an ordinary residential lot so he=s not really being impacted by a less, a higher density than he would have if it had just been done with regular zoning. So that would be my concern about making a special consideration and I do have I guess some thought to restricting future property owners. Sometimes, I guess there=s always debate on whether the natural area all needs to be left natural. There may be some things that need to be cleaned out that you might be restricting cleaning of.@

Chairman Hawkins: ADo you have any other thoughts?@

Ms. Beeker: AMr. Chairman, before they sit down, I haven=t heard anything that specifically addresses some of the requirements in the Ordinance and it might be appropriate to get them to talk about some of things, like for instance that they do have the burden of proof on. It says that the Commissioners shall determine that satisfactory provisions have been made concerning the following. And it lists six things, ingress and egress, he talked a little about that. Off street parking and loading areas, the utilities, buffering, you=ve been talking about but also about your open spaces and playgrounds and yards and things like that in a little bit more detail in what is planned for that and then talk a little bit about your buildings and structures that you intend to put on there. You want the list? It=s taken from the Ordinance but I just think we need to get some evidence in the record that if you are making adequate provisions for those things we can make some findings and fact to say that we are.@

Chairman Hawkins: AIf you would Mr. Small just start with the ingress and egress, either you or Mr. Ward. We=ve already had some discussion about that=s the only ingress and egress is off 191, I think we=ve discovered that. Off street parking and loading areas, I don=t know that loading areas are particularly applicable but apparently you have off street parking with designed into your lots as far as driveways, is that correct?@

Mr. Ward: AYes.@

Chairman Hawkins: AAnd how about utilities? Could you address that as to where you are with utilities.@

Mr. Ward: AYeah. We have an engineer, Paul Patterson, who has designed the water and sewer system to time with the City of Hendersonville=s wastewater collection and public water system. He=s currently working on those plans. He=s had a preliminary approval from the City for a general layout. And there=ll be the normal stuff, power and cable tv, natural gas.@

Chairman Hawkins: AAre they above ground or below ground?@

Mr. Ward: AThey=ll all be below ground, the utilities.@

Chairman Hawkins: ABelow ground, the utilities? OK. Any additional information on buffering that we=ve not discussed?@

Mr. Small: AWe=ve got a good bit of open space that shows on this plan and that mostly speaks for itself. Of course, we=re trying to buffer the residents of Creekside from the noise that would come from Highway 191. We=ve also been required to dedicate an additional, I think it=s 20 feet here, for the possible future widening of 191. I say that quietly so we don=t cause an uproar. But we=ve also got that as additional buffering. The playgrounds, open spaces, yards, access ways, and pedestrian ways, we=ve submitted a plan which shows an outline of where those trails would be and open spaces. Of course, the green area that is in the center right there was for 150 years. The Bowen family has fed their family from that space and the family wants to preserve that and call that Bowen Terra which is the land of Bowen and to be permanently dedicated as a place where they raised crops for a long time, cows and a lots of things. So it=s a special place to the family. Buildings and structures, the homes that are going in there will be in the 2,000 square foot range with garages and there won=t be any other buildings or structures other than such as required by the utility for emergency generators, lift stations and things like that.@

Chairman Hawkins: AAny other specific...?@

Ms. Beeker: AThe Ordinance requires that you submit a written instrument outlining the open space and kind of an agreement between the Board and yourself. Do you recall that provision in the Ordinance? Are your restrictive covenants intended to fulfil that?@

Mr. Small: AWill they satisfy that?@

Ms. Beeker: AAt some point I=d like the opportunity before the Board takes final action to sit down with Mr. Small to go through those. I didn=t go through for things like not cutting, you know, twelve inch trees but I did go through for things such as the open space and it=s fairly detailed and so before either you make your decision if you choose to grant it conditional on us sitting down and letting me as your Interim County Attorney be satisfied that those provisions of the ordinance have been met or something. But I just wanted for the record, that that is an application requirement given that the restrictive covenants are intended to serve as that written instrument. Would you be willing to do that?@

Mr. Small: ASure.@

Chairman Hawkins: AAnybody else have any questions while you=re up here from the other parties? Mr. Perry, you still have a question?@

Mr. Perry: AAre you going to address the easements or the right-of-way or access to my property? Have we finished addressing the question of buffering?@

Chairman Hawkins: AWell, I think we=ve gotten some, at least some evidence presented. I don=t know that the Board=s made a decision but we have some information. And your other question was easements, or right-of-way?@

Mr. Perry: AWell the access provisions that was for my use of the road, called Parson Road, I would like to be indicated as a part of the easements as well as for the covenants of the development because they are assuming the responsibilities passed on by the previous owners. I would like to clarify the access that I have...@

Chairman Hawkins: ALet me ask you Mr. Perry if you would come up to the mike so our Clerk can get all your comments and I guess the first question I need to ask you what do you currently have on records, deed, easement, covenants or what exactly do you have?@

Mr. Perry: AI have a deed with statements on the deed that access was by virtue of the McCarson property and that all future owners of the property would be subject to those requirements.@

Chairman Hawkins: ASo what you=re saying is that Mr. Small is required by what you already have to be offer you access to your property?@

Mr. Perry: AYes, I=d like that to be clarified in the statements of the covenant of the development.@

Chairman Hawkins: AOK, but I=m not sure we can do that from this Board. If you already have it on the deed, I would think that would probably be where that should be, but I=ll defer that question to our attorney since I=m not the...@

Commissioner Moyer: AWell, I guess the question for the Planning Board staff is whether the easement is on the property that was filed for a subdivision and if it is whether it was properly shown on the subdivision when it was filed.@

Mr. Small: AWell it=s certainly not an easement.@

Chris Timberlake: AI would have to say that the property line actually splits the easement.@

Ms. Beeker: AMr. Small might be the best person to...@

Chairman Hawkins: AMr. Small do you, or at least in your opinion, where=s Mr. Perry=s easement to his property?@

Mr. Small: AHis easement, I mean I don=t know that it=s called easement, it=s referred to on the deed as a right to cross. The road doesn=t exist on any public record. We can=t ever deny him proper, you know, the right to cross because it=s there by deed and you have to honor all those previous commitments. But certainly we don=t own the whole thing. I mean how could we possibly show an easement that we can=t give him? He=s got a right to go in there and we can=t stop that. So you can=t land lock someone and we=ve got no interest in doing that.@

Chairman Hawkins: ADo you have a suggested, or any thing that seems to be amiable to you as far as incorporating either in your plan or how would you address that if he needed access?@

Mr. Small: APart of his right to cross is across Carriage Park. You know.@

Chairman Hawkins: AAnd parts of your property?@

Mr. Small: AAnd parts of property that is owned by two or three different people. He also crosses the McCarson=s cemetery to get there and has for years. And we can=t grant that of course.@

Chairman Hawkins: AThere=s a road through the cemetery?

Mr. Small: AYes. Half of a road.@

Chairman Hawkins: ALet me ask our County Attorney if she has any...@

Ms. Beeker: AShe=s thinking about it. I=m not sure you know that it=s going to give Mr. Perry any greater right than he already has, you know, to access across that road and I=m not quite sure that=s the role of the Board. If it is a part of the subdivision review that might be a little different matter but I don=t see that that=s going to give him any greater right than he already has. To me that=s a matter between the property owners.@

Chairman Hawkins: AThank you Mr. Small.@

Mr. Perry: AMay I respond? My request was that it be stipulated in the rights of the covenants.@

Ms. Beeker: AYes sir, but I=m not sure this Board can direct him to put that in his restrictive covenants. If he=s willing to do that I guess he could do that but I=m not so sure that as part of this review, that the Board...@

Mr. Perry: AYou=re saying that=s outside your jurisdiction. OK. I=d appreciate it being addressed by them but you=re saying you cannot make that a condition of it?@

Ms. Beeker: ARight, and what I=m also saying that whatever access right you have now is what you have.@

Mr. Perry: AYes. I=ve heard discussions of closing the road which would mean that I would be faced with a large legal expense to defend those rights and if I could have it clarified it would certainly be beneficial to me.@

Ms. Beeker: AOK. I=d be willing to do some you know research if that=d be the Board=s desire. I wouldn=t be prepared to offer, you know, a definite legal statement about that at this time.@

Commissioner Ward: AWould it be appropriate to ask Mr. Small if he has any intentions of closing the road?@

Ms. Beeker: ASure you could ask him that.@

Mr. Small: AWe have no intention whatsoever of closing the road. None at all.@

Commissioner Ward: ASo for the record Mr. Perry has something to take to court with him.@

Mr. Perry: AThat will be part of these recordings?@

Chairman Hawkins: AOh yes, everything that is submitted in evidence will part of the record. Yes sir. OK. Let=s see we had the rebuttal evidence of Mr. Small I think. Angie are you still with me on that? I=m ready to move on to ask if anyone wishes to give any closing remarks.@

Commissioner Moyer: AI think we better go back and see if all the parties and witnesses have presented all evidence they wanted to.@

Chairman Hawkins: ADo any of the other parties wish to ask the witnesses any questions? I think we had one witness over here that was your witness from the Homeowners. Do you want to ask her to make any comments at this time, if you want to? If you would restate your name for us, please.@

AJessie Ann Botere, 181 Long John Drive. My major concern was that the wouldn=t, I understood they were requesting to cut into our development for those lots that as I understand they have now been put into open space?@

Chairman Hawkins: AI think that is correct.@

Ms. Botere: ASo if they=re put into open space then they will not be eligible to put a road in there at some later time?@

Ms. Beeker: ANot without coming before the Board and asking for it and then you=d have the same proceeding that you=re having now.@

Ms. Botere: ALet=s hope nobody wants to build. I know if they=re a smart enough builder they can put a house anywhere. Thank you.@

Chairman Hawkins: AAny other witnesses?@

Ms. Beeker: AMr. Chairman, I wanted to ask Chris some questions just for the record.@

Chairman Hawkins: AChris would you, are you still here?@

Ms. Beeker: AHave you reviewed this master plan?@

Chris Timberlake: ANot the revised one in full detail. I have looked at it. But the current one, the original plan I did review in great detail.@

Ms. Beeker: ABased on your review for first the original plan, does this meet the minimum lot size requirements and will it meet the ...?@

Chris Timberlake: AAs far as the lot size requirements go, those have not been changed to my recollection. The only thing that has been changed is what=s been noted has obviously been satisfied including the note that was shown...@ (I couldn=t understand the remainder of Chris= statement).

Ms. Beeker: AOK. So based on your review other than the things that were specifically listed by the Planning Board, this plan meets the requirements of the Ordinance?@

Chris: AYes.@

Chairman Hawkins: ADoes any other member of the Board have any questions for any of the witnesses or any of the parties? OK, I think we=ve got all the evidence in. Mr. Small do you have any closing remarks?@

Mr. Small: AJust Angela was talking about the subject to review of the covenants. If you all do take action, I=m hoping that we can go ahead and get approval so that we can begin some more because this is our construction season subject to of course any kind of comments and changes she might have.@

Ms. Beeker: AI apologize but there is one thing I noted in those restrictive covenants that I=d like to ask you about. The restrictive covenants referenced using a lot as a sale office or a model home and I believe if that=s your intention that=s something, you know, I want to point out for the Board=s review because I think that=s something that would have to be stated in the permit as something that=s allowed in this district.@

Mr. Small: AOK. The sales office would be a permanent home eventually but it would be initially something to show what we=re going to build in there and at some point in time when it=s no longer needed it would be sold as a home. If that clarifies that at all.@

Chairman Hawkins: AI think they have one of those in Carriage Park. Is that not at the entrance and in fact several places. Middleton Place.@

Commissioner Moyer: AMr. Small regardless or not where the Board comes out on this, I think you did indicate the twenty-foot protected easement between your property and Mr. Perry=s would be acceptable to you if the Board asked for that.@

Mr. Small: AYes it would.@

Chairman Hawkins: AKaren do you have any closing remarks?@

Ms. Smith: AAll I wanted to do was pass out those minutes that I promised you. The Planning Board minutes from May 25^th.@

Ms. Beeker: AFor the record, this would just be an official document that would state what the Planning Board=s action was.@

Chairman Hawkins: AAre there any additional parties that have any closing remarks? If you were a party to the proceeding, if you have any closing remarks, it would be appropriate at this time. Mr. Perry, do you have some closing remarks?@

Mr. Perry: AYes. I intended to say these things before. I have had the enjoyment of being adjacent this land for some time that I=ve enjoyed using and of course my preference is that it not be developed but it is going to be developed and I don=t own it so I can=t dictate that and I have confidence that the developers will and are planning a good program and I look forward to the developments. My concern is to maintain my own enjoyment and the value of my property at the same time and I hope the Board will consider my requests in that viewpoint as reasonable requests as part of this process. Thank you.@

Chairman Hawkins: AMr. Small, do you have final closing remarks?@

Mr. Small: ANo.@

Chairman Hawkins: ANow that the evidence has been presented and the closing remarks concluded, it is appropriate for the Commissioners to discuss the issues presented today. We can either vote today and direct staff to bring back findings of fact, conclusions consistent with the decision and the Board=s discussion or we can continue our discussion and decision to a later date. But I remind the Board that the Board must issue a written decision within 45 days of the conclusion of the hearing. So with that in mind, I think we=ve looked at a lot of evidence that=s been presented, various things to consider, and Bill do you have any items that you want to discuss?@

Commissioner Moyer: AWell, I would like to see us take action because of our schedule unfortunately this has been put off a couple of times and as I indicated before it is the season you=ve got to move if you=re going to move on this type of development. It think the conditions that the staff have raised, I think the only open one as far as, well two things, are what Angela would like to review as far as the conditions, we could make that a condition and I would like to see the twenty-foot natural easement between the development and Mr. Perry=s property. And I would move that we approve this subject to state the conditions that I just stated.@

Chairman Hawkins: AAnd if I could clarify that, that was the conditions that had not already been met and the Planning Board recommendations of which I think there=s a list of those, the fire hydrants, there were several of those that you had already met.@

Commissioner Moyer: AI can go back and enumerate them if you=d like.@

Chairman Hawkins: ADo we need to enumerate those for you, Angie?@

Ms. Beeker: AYes sir and then the other would be letting the City bless their 5%.@

Chairman Hawkins: AAs well as your review of the covenants?@

Ms. Beeker: AYes sir.@

Chairman Hawkins: AWould you amend your motion?@

Commissioner Moyer: AThis will be Planning Board comments other than number 1 which has been satisfied, number 5B which has been satisfied, number 6 and number 9, as I understand it Karen. And the other conditions would still remain plus the, I guess, indication from the City that either Roger Briggs has been authorized to act or action from City Council if appropriate plus the twenty-foot easement between Mr. Perry=s property.@

Chairman Hawkins: AAnd review of the covenants.@

Commissioner Moyer: AYeah, and review of the covenants.@

Ms. Smith: ADid you also want to note the watersupply watershed protection condition 1 have been met?@

Commissioner Moyer: AI have checked that off Karen but if you need...?@

Chairman Hawkins: AIs that the notes on the plan? They have not been accomplished?@

Ms. Smith: AThey have been so that=s why, I think he was saying everything but...@

Chairman Hawkins: AIf you would amend your motion to admit that also.@

Commissioner Moyer: AWell, I was only dealing with Planning comments but that=s fine and we=ll eliminate that one as well.@

Chairman Hawkins: ADid you get the entire motion?@

Ms. Beeker: AI did. The one thing I do want to point out, I realize this is Board=s discussion but for the sake of everyone understanding when development can begin, the Ordinance says that you can=t issue the zoning compliance permit until at least 75% of the open space is in existence and has reached the plan=s stage of development. So there=s still going to be some work that has to be done after the vote today before he could actually begin to build houses. It=s in the Ordinance.@

Commissioner Gordon: AI=m sorry I don=t understand that. The open-space is basically there, it=s wooded.@

Ms. Beeker: AHe has to go and build the trails and things that he=s showing on the plan, at least 75% of it has to be done before he can get a zoning compliance permit. In your Zoning Ordinance,....@

Commissioner Gordon: AIn other words, he has to build 75% of his walking paths before he can start building houses?@

Ms. Beeker: AIt says no zoning compliance permit shall be issued by the Zoning Administrator until at least 75% of the open space as shown on the plat are in existence and have reached the plan stage development shown on the plat and described in the application and accompanying instruments. That=s why I asked him to go into exactly what he plans to use the open spaces for.@

Commissioner Ward: AWouldn=t a map of the proposed trail or a trail be sufficient?@

Chairman Hawkins: ANo, it says it has to be built.@

Commissioner Ward: AWell a trail is a trail. I mean a dog can make a trail. I=ve got several cows and this has been a cow pasture. It=s made several trails.@

Commissioner Gordon: AIn effect, we=d been better off then if we were not putting, or he would have been better off, just to have said it was going to be open woods and left it at that than he would with a trail because constructing a trail will hold up everything. Right?@

Chairman Hawkins: AWell, I think it gets down to what Don=s pointing out, it says are in existence. Well, certainly at the top of the hill they=re already in existence and it=s open.@

Commissioner Moyer: AI guess the question on this is Angela=s interpreting, reached the plan stage of development, I would have thought that we were, when he has a plan and the open space is shown and I realize not legally dedicated but clearly indicated on the plat that that would have been sufficient to move forward.@

Ms. Beeker: AAs I have read it, it=s up to the Board to interpret it, but as I have read it if there are specific amenities or whatever that were going to be part of that reserve common open space that that would have to been done, at least 75% of it would have to be done.@

Commissioner Moyer: ALike if they were going to put a pool or a.... gosh, that surprises me.@

Commissioner Gordon: AThat=s very difficult to....@

Chairman Hawkins: AWell, let me suggest that we do this because...@

Ms. Beeker: AYou can go ahead and vote.@

Chairman Hawkins: AWhat we have now is an interpretation of the Zoning Ordinance, not whether or not the motion that=s on the floor...@

Commissioner Moyer: AWell, we could have Angela craft in the findings and conclusions that for purposes of this development, we want the open space clearly shown so there=s no question to it that the layout of everything be indicated and if the final work of putting the topping or the surface on the walk or whatever it be be completed as the development goes on. And then I think that would be a reasonable way to go about it. I think I may also have to add to the motion that we, so that Angie has it, that we specifically permit a model home to be placed on one lot in accordance with the specifications in the final order.@

Chairman Hawkins: AAny other discussion on the motion on the floor? Marilyn, do you want to think about it a minute?@

Commissioner Gordon: AWell, I agree with Bill that we do need to take action today. I think it has gone on long enough. And I do have concern about the twenty-foot reserved easement on those lots. I=m not sure that there=s real justification for that and I understand Mr. Perry=s concerns but any land next to undeveloped land is subject to change and certainly what=s being proposed is well within the parameters of what even the ordinary zoning would=ve allowed so I have a hard time justifying that provision. But since the developer has indicated he has no problem with that or is willing to do that I would not want to hold up the whole proceeding because of that and I would go ahead and agree to it but I would want to be very clear that I would not consider that this was something that would apply to every situation like this.@

Ms. Beeker: ACould you list the numbers of the lots that=s going to apply to?@

Commissioner Ward: AThat was one of my main things, I mean you taking 50, 51, 45, you=ve got some pretty good sized lots but when you get down to 41 and 37, it=s a small lot to get a twenty-foot easement.@

Commissioner Gordon: AI can=t, I just....@

Commissioner Moyer: AWait a minute. You=ve got an eighteen foot setback, you=re only increasing and making a natural two additional feet.@

Commissioner Gordon: ABut what you=re doing is saying that they, it has to stay whatever it is and that may be totally under, it may be good or it may not but it=ll have to stay that way.@

Commissioner Ward: AWell, one of the biggest things, if it was in twelve-inch trees, it=d be one thing, but there was a gentleman on the front row said there was a fence, barbed-wire fence that was down and I=m assuming there=s a lot of briars and eventually you could be having poison oak and kudzu and someone would like to go in there and clean it up and make it a better neighborhood and with this easement, then no one can go in and clean up the poison oak that=s the grandkids run into.@

Commissioner Gordon: AIt=s essentially no man=s land. It=s no man=s land and that concerns me.@

Commissioner Ward: AI live next to an easement and it grew up in a, well I broke my easement, I went and cleaned up my lot.@

Commissioner Moyer: AWell, we can solve that Don with the wording that Angie can put in there that you can go in and maintain in it and eliminate the downed branches, whatever you want to do so that it can be maintained in an attractive state. I don=t think we=re trying to avoid that. It=s just I don=t want them to be able to go in and flatten it.@

Commissioner Ward: AWell and that was my concern.@

Commissioner Moyer: AWell why don=t I amend the motion that we put language in there to be maintained, it can be maintained of injurious stuff like poison ivy, poison oak, kudzu, fences, downed fences, so that it=d be maintained in a green and natural state, an attractive green and natural state. Would that be alright Mr. Ward?@

Commissioner Ward: AThat would be more appropriate.@

Ms. Beeker: AFor which lots?@

Chairman Hawkins: AWhat=s the numbers on there? 50,...@

Ms. Smith: A51, 52, are you saying, were you just saying to be specified to your yard or...?@

Ms. Beeker: AIt=s separate from that. Different requirement.@

Ms. Smith: ABecause it=s on either side.@

Ms. Beeker: AIt doesn=t....@

Ms. Smith: AOK. 51, 50, 46, 45, 44, 41, 37, and 36.@

Commissioner Ward: AWell, 36 borders the cemetery, doesn=t it?@

Ms. Smith: AThat=s right. Forget 36.@

Chairman Hawkins: AOK. Did you get those numbers, Angie?@

Ms. Beeker: AI did.@

Ms. Corn: AThat was seven lots?@

Ms. Beeker: AYes.@

Chairman Hawkins: ASo we have a motion on the floor and I=ll try to briefly restate it and see if I can capture all of it. Bill, if I miss some of it you can help me. The motion is to approve the open space development with stipulations that included those items that were not, or have not already been addressed from the suggested stipulations that was first presented by the Planning Board. Karen, I think you have those already listed. The second provision was that the covenants needed to be reviewed with the County Attorney. Additionally, the authority of the City Planner to abandon their extraterritorial jurisdiction authority to the County in this matter needed to be investigated and was contingent on that being a fact which we still need to establish. Additionally, those lots that are adjoining Mr. Perry=s to include in addition to the eighteen feet, I guess actually an additional two feet, for a natural buffering with adequate capability to access and maintain it so that it=s not just a run down area. Was that all?@

Commissioner Moyer: AModel home.@

Chairman Hawkins: AAnd a model home allowed on one of the lots for your marketing purposes somewhere.@

Ms. Beeker: AAnd then the language about the open space and the trails being developed as development occurs.@

Commissioner Moyer: AYes for purposes of this zoning compliance provision, it will be so interpreted, that=s correct.@

Ms. Beeker: AOK. And one last thing. On lot 46, it=s a corner lot. It was listed in the list, I don=t...@

Commissioner Moyer: AIt may go into the angle. Technically, you could pick, it might go into the angle that slight piece, I thought the same thing but it=s possible that if you do a radius you would hit it. I think you=ve covered it but I think the way to phrase the compliance of waiving the ETJ would be whatever the appropriate body, whether Mr. Briggs or City Council, that we receive the appropriate waiver or approval.@

Chairman Hawkins: AIs that sufficiently capture of the motion? All of those in favor of that motion say aye. OK, and we=ll direct staff to come back with findings of fact and we=ll make a written report to that extent.@

All voted in favor and the motion carried.

Commissioner Gordon: AMay I ask one thing, if staff would please make a note, or if the Planning Department Head, would please make a note in the zoning rewrite that we=re working on to make a note of this, that we=ve run into this 75% requirement in this and we need to get that clarified.@

Commissioner Moyer: AMr. Chairman, I need to either request a pause or longer pause since I have someone to pick up at five o=clock. We need to deal with it somehow.@

Chairman Hawkins: AOK. I=ll make a motion that we go out of quasi-judicial hearing at this time. All of those in favor, say aye.@

All voted in favor and the motion carried.

CHARLESTOWN PLACE QUASI-JUDICIAL HEARING

Chairman Hawkins: AI make a motion that we go into a quasi-judicial hearing for Charlestown Place. All of those in favor of that motion, say aye.@

All voted in favor and the motion carried.

Chairman Hawkins: AThe Board acknowledges the petitioner Joe Crowell Construction Incorporated and the staff as parties to the proceedings. Are there any other persons present who could demonstrate that they will be affected by the outcome of the proceedings and who wish to be a party to the proceedings? Yes sir, would you please come forward and state your name.@

Nathan Billingsley, 1606 Greenville Highway

ANathan Billingsley, 1606 Greenville Highway.@

Chairman Hawkins: AAnd are you adjacent to the property, sir?@

Mr. Billingsley: AYes I am.@

Chairman Hawkins: AAlright. Anybody have any problems with that? OK sir we=ll accept you as a party. Anyone else?@

Ms. Corn: AWe had two other people who had signed the sheet. Judy Brown.@

Ms. Brown: AI=m not adjacent. We determined we=re not directly affected.@

Ms. Corn: AOK. And Dan Fowler.@

Chairman Hawkins: AYou all got that sorted out? OK. At this time, I=ll request that all the parties to the proceeding and all witnesses that they intend to call come forward to be sworn in. It=s not as big a group as we had the last time. Sir, are you going to be a witness?@

Gentleman: ANo, I=m part of the...I=m the developer.@

Commissioner Moyer: AAre you going to have anyone else speak Mr. Crowell that will have to be sworn in later?@

Mr. Crowell: ANo.@

Ms. Corn: AOK. That=s Mr. Crowell? They don=t have to be sworn in since they... OK. Left hand on the Bible and raise your right hand.@

Ms. Beeker: AI would do it again.@

Ms. Corn: ARaise your right hand. Do you swear or affirm that the testimony that you shall give to the Board of County Commissioners shall be the truth, the whole truth and nothing but the truth, so help you God? Thank you.@

Chairman Hawkins: ADo you have everybody=s name, Ms. Corn? OK. Staff if you want to make your introductory remarks?@

Ms. Smith: AAs with the first hearing, Chris is passing out the agenda item, Chris they have that, mentioned items that the parties have it, and also if you need copies of the Subdivision, except me, the Zoning Ordinance sections that are relevant, let Chris know as he comes by. OK. Mr. Joe Crowell has submitted an application for Charlestown Place, a proposed Planned Unit Development in a zoning district. The Zoning Ordinance allows planned units development as a special use in the R-10 district. According to the Zoning Ordinance, special use permits require a public hearing and approval by the Board of Commissioners. The Zoning Ordinance also requires the Planning Board recommendation on the special use permits. The proposed planned unit development is located on US 25 South, Greenville Highway, just south of Shepherd Street. Chris has a map on the TV screen that shows you where the parcel is and if you could just indicate where US 25 is Chris. Thanks. The total tract size is 14.29 acres. Phase I is 11.94 acres and Phase II, 2.35 acres. The developer intends to build 52 units in Phase I. Permitting Phase II would be for future development. Zoning district allows density of 4.36 units per acre which is what the applicant is proposing for the property. In a planned unit development standard minimum lot size, setbacks and frontage requirements are waived as long as the overall development plan complies with the spirit and intent of the PUD standards.

The current owner of the property is Ms. Helen Moxley Pace and family. According to the applicant, the ownership will be transferred to a new corporation with Joe Crowell Construction as the majority stock holder should this special use permit be approved. At such time, Ms. Pace will retain a .48 acre portion of the tract. Chris will point to it.

Phase I will contain twenty-six buildings with two town homes each for a total of fifty-three units with communally owned open space. Each town house will be served by City water, City sewer and private roads built to NCDOT standards. The town homes will be similar in architecture and exterior maintenance will be cared for through a homeowners association. A walking trail is proposed for the eastern portion of the property and sidewalks will be located along Charlestown Drive. Phase II is shown on the plan as a future development area. According to the applicant, this area will be reserved for the possibility of trading land with an adjoining land owner, Mr. E. Cater Leland, and also according to the applicant, any development proposed for Phase II will meet the requirements of R-10 zoning.

This hearing has been advertised in accordance with State law in the Henderson County Zoning Ordinance. However, I did want to note that there was a typographical error in the notice that went to the adjoining land owners. It noted 3 o=clock am instead of pm. We did make an attempt to contact those owners so that we wouldn=t have the same problem we=ve had with rescheduling. That concludes staff=s opening comments.@

Chairman Hawkins: AThank you. At this time, Mr. Crowell, would you like to present your evidence?@

Mr. Crowell: ACharlestown Place will be a condominium type project similar to one that I=m just finishing, the Saddle Brooke Project, which is on Willow Road. That has been received very well in the community and so I have plans to continue with a similar type product. The piece of land suits itself very well for a project like that because it=s basically an open pasture with some wooded area at the far end there we=re going to preserve as much of that wooded boundary as possible and that=s where we intend to have our walking trail. We=ve tried to work to the topography with the Loop Road through there. The entrance will, along Highway 25 there=s a buffer of very mature trees, probably at least a hundred years old. All of those trees will remain. We have worked our entry through those so that from Highway 25 you will not be able to see any of the buildings in Phase I. So we=re thinking it=s going to be pretty well hidden, pretty well buffered and we should have a very nice entrance. And that=s probably about all I can tell you about it now.@

Chairman Hawkins: AOK. Does any other parties or any Board member have a question for him?@

Commissioner Moyer: AI have a question for him. Would you clarify for the record, what you=re going to do. It=s showing on our records as a ten-foot setback planted with white pines. Would you clarify what you=re going to do in that area?@

Mr. Crowell: ALet=s see, where we=re talking about? The buffer strip?@

Commissioner Moyer: AYeah.@

Mr. Crowell: AThat will be just a row of white pines that will be basically a screen type buffer. There are some homes and lots along there. Ms. Helen Moxley Pace lives there, I think owns two lots that join that. That is the highest part of the property and the property falls off from there. So this row of pines appears to be on the top of a berm so that the people from Staton Woods for the most part should be looking over the development and the roofs that you=ll see in that area.@

Commissioner Moyer: ABut there=s not going to be a berm? This is just planted at ground level, is that what you=re talking about?@

Mr. Crowell: AWell the trees will be planted at ground level but the first building will probably be six to eight feet lower than the level of the trees because of the way it falls off. So there will be, you know, it will be a landscaped buffer that will appear to be a berm from inside the property but from the outside it won=t. So that=s why the buildings will be considerably lower than the other property there.@

Chairman Hawkins: AAny other questions from the Board? Any other parties have a question for Mr. Crowell at this time?@

Ms. Beeker: AI have a couple of questions. Do you intend to have a sales office and model home as well?@

Mr. Crowell: AYes, we will build a unit that will operate as a sales office model home.@

Ms. Beeker: AAre you actually intending for Phase II to be incorporated in this permit or just Phase I because what I understood Karen to say is that Phase II would just be developed in accordance with R-10.@

Mr. Crowell: AYes, at this time we don=t have a development plan for Phase II but we don=t plan to try to re-zone or...@

Ms. Beeker: ABut you=re not asking for any special permission with regard to Phase II at this time?@

Mr. Crowell: AThat=s correct, just are going to leave it zoned the way it is or just make the statement that any development we do will be within the R-10 zone.@

Ms. Beeker: AOK. Then with regard to the forest at the end, in your application you said that it would be available to the surrounding communities. Could you talk about that?@

Mr. Crowell: AWell, it will not be fenced from the surrounding communities. That is sort of a stand of woods and there=s some single family home sites in Staton Woods that back into that. The rear of some of those are wooded also. So I guess what we mean there is that our woods will be contiguous with their woods.@

Ms. Beeker: ABut you=re not actually intending to allow them access to walk on those walking trails?@

Mr. Crowell: AWe haven=t really planned to deny them access, you know, to the neighbors or whatever.@

Ms. Beeker: AOK.@

Chairman Hawkins: AOn the front part of your plan up there where you got your future development, how much road frontage do you have from, I guess, where it comes into Billingsley up there, which I don=t think is part of it anyway.?@

Mr. Crowell: AHow much road frontage is on the future development?@

Chairman Hawkins: ANo, on the one you=re asking for.@

Mr. Crowell: AThat was brought up at the Planning Board meeting and there is a minimum amount of footage that that has to be and we met that minimum. To tell you the truth, Karen, do you know....?@

Ms. Smith: AThe minimum is 200 feet.@

Mr. Crowell: ASo it is 200 feet. We didn=t have quite 200 feet on our initial plan so we lengthened it to the 200 feet.@

Chairman Hawkins: AAnd that doesn=t include any road frontage on the future development?@

Mr. Crowell: ANo, that=s all on Phase I of Charlestown Place. The future development is probably more like 350 feet.@

Chairman Hawkins: AAny other questions? Karen, do you want to present your evidence at this time?@

Ms. Smith: AWe are again passing items, the Planning Board recommendations, staff comments, minutes from the Planning Board meeting and a copy of the restrictive covenants.@

Chairman Hawkins: AWe=ll take just a few minutes to look through those, Karen.@

Ms. Smith: AOK. The Henderson County Planning Board reviewed the application for Charlestown Place for compliance with the Zoning Ordinance. At its May 25^th, 1999 meeting the Planning Board made a favorable recommendation to the Board of Commissioners subject to certain conditions being included. These conditions are spelled out on a memo that you have in front of you and as in the last hearing for the record, I will proceed to read those unless told otherwise. And again I will go back and under staff comments note ones that have been satisfied if any later on.@

Ms. Beeker: AKaren, were you present at the Planning Board meeting?@

Ms. Smith: AI was present at the Planning Board meeting.@

Ms. Beeker: AIs it your testimony that this reflects the recommendations of the Planning Board?@

Ms. Smith: AYes.@

Ms. Beeker: AMr. Chairman, it=s OK. I don=t know that she needs to read these in there. They=re in the record.@

Ms. Smith: AThat=ll suit me just fine.@

Chairman Hawkins: AWe=ll forego that. I think everybody, all the parties have a copy of this document.@

Ms. Smith: AThey should at this point. OK, then staff will direct comments to the staff memo and state that the majority of the conditions that were recommended by the Planning Board were based on comments that staff had provided to them prior to the meeting on May 25^th. Some of the items have been satisfied. Staff does support the Planning Board=s recommendation. Let me point out those conditions that have been met.

Condition number two regarding road frontage. As Mr. Crowell stated a few minutes ago, he had indicated at the Planning Board meeting that he would reconfigure the road frontage to meet the Ordinance and has submitted a revised plan that shows the required 200 feet of frontage. The revised plan is what was included in your packets. It=s last revision date was noted as June 10^th, 1999.

Regarding condition number six, parameter requirements. There are several parts to that section of the Zoning Ordinance. With regard to 6 A, setback in accordance with the districts in which the project is proposed. Prior to meeting with the Planning Board the applicant had proposed a ten foot setback along most of the property. After presenting the plan to the Planning Board and discussing it, the applicant agreed to have a ten foot setback for all structures around the entire property boundary. The revised plan submitted by the applicant shows a ten foot setback along all property lines in Phase I except in the north sides of the open space at the entrance where there are no structures proposed. Chris is showing on the screen where that area is that is designated as open space.

Screening in a manner approved by the Board of Commissioners. This too has been, actually partially satisfied. The applicant intended to provide a buffer for the southern boundary of Phase I on the original plan. The Planning Board wanted the Commissioners to determine if a buffer was needed for the northern boundary of the property after taking public comments at the hearing. The developer has submitted a revised plan which shows the buffer on the northern portion and so this would somewhat meet the Planning Board=s condition. It also showed that the proposed buffer would be planted with white pines. Commissioners may want to have the applicant confirm that he intends to provide the buffer as shown on the revised plan. Basically, what I=m saying is the Planning Board wanted you to take comments on it but it looks like his revised plan is already intending to do that so we may just need to clarify there.

Condition # 10 - landscaping. The applicant after the Planning Board meeting submitted a typical landscape plan. This was attached to your agenda item. I think it was the very last page of the public hearing agenda item. This showed the proposed landscaping around the proposed walled units.

Condition # 12 - lighting. The revised plan does show the proposed locations of outdoor lighting fixtures.

Condition # 13 - restrictive covenants. This item has been partially satisfied in that the applicant has submitted the covenants to the Planning Department and staff has delivered these to the Interim County Attorney for review. These still must be reviewed as to legal form and effect for compliance with revisions of 200-33 of the Zoning Ordinance. The Board of Commissioners must also review the covenants for suitability for the proposed uses. This is a little different from the previous hearing. There are some specific requirements as far as these covenants consider. So again that=s been partially satisfied.

Condition number fourteen regarding open space is also partially satisfied. The revised plan shows the total amount of open space in Phase I is 9.8 acres. This was not shown on the previous plan. We did ask, the Planning Board did ask that the applicant show this. There are several open spaces indicated on the plan; however, if there are any other open spaces the applicant should indicate where these are. I know it=s difficult on a concept type plan to specifically show where those will be and outline them but if it=s possible to further delineate any open space we=d like to have that shown.

The Zoning Ordinance states that in order to grant a special use permit there are certain general conditions and specific conditions which are noted on the application. Again that the use would not adversely affect health and safety of the persons residing or working in the neighborhood and that it will not be detrimental to the public welfare or injurious to property or public improvements in the neighborhood. And in making the findings, the Board of Commissioners shall determine that satisfactory provision has been made concerning certain things if applicable, ingress, egress, off street parking, loading, utilities, buffering, playgrounds, open spaces, yards, access ways and pedestrian ways and buildings and structures. Any unsatisfied conditions recommended by the Planning Board, if the Board accepts those and any other items deemed necessary by the Board may be listed by the Board as conditions.

Are there any questions of staff?@

Commissioner Moyer: AKaren before you move on, how about clarifying 15 and what you=re looking for in 15 because I think you=ve given us a couple of options there and we=ve got...?@

Ms. Smith: A15?, I=m not sure...@

Commissioner Moyer: AI think I=m looking at the Planning Board recommendations, 15 is erosion and sedimentation control.@

Ms. Smith: AOh, I=m sorry. The Planning Board=s recommendation, erosion and sedimentation control. Evidence that a soil and erosion control plan has been approved. Generally, the State will issue a letter of approval and that, if we could see that letter, but the issue then becomes at what point, prior to the issuance of any zoning compliance for the town houses or, you know, at some other point.@

Chairman Hawkins: AKaren, is the Ordinance now that reads that basically says that you have to have submitted a plan and in any of the other ordinances, is that correct?@

Ms. Smith: AAny of our other ordinances? The Subdivision Ordinance does require before a final plat can be signed that the actual evidence of approval be submitted. If this would involve a plat of some sort that would be put on record, you know, again before that would be put on record we could require it but I really think that staff needs to see the evidence before any work begins.@

Chairman Hawkins: ADoes that answer your question, Bill?@

Commissioner Moyer: AI think we need to hear from Mr. Crowell with respect to that at some point and I=m not aware that this was done before. I just wondered why this came up in this situation.@

Ms. Smith: AThe erosion control?@

Commissioner Moyer: ANo, no. The erosion is always there but the part about at a different point in time.@

Ms. Smith: AYeah, the Subdivision Ordinance is very specific about it but since the Subdivision Ordinance doesn=t apply here, the Zoning Ordinance doesn=t address any time frame.@

Chairman Hawkins: AOK. Any other questions?@

Commissioner Gordon: AI have a question. Karen, the condition # 14, the open space, is partially satisfied. What else are we looking for there because with condominiums all space other than the structure is open space technically.@

Ms. Smith: ARight. I think I just wanted to see if there=s anything else that=s not labeled. Let me point to those on the map. This area by the entrance is labeled open space, open space. I assumed that the rest of this is but we may need some evidence. He states here 9.5 acres is and then I=m assuming that the full commons is also but if, I guess just for the record I want to make sure that we=re including all the open space that=s not shown in buildings and roads.@

Mr. Crowell: AThat=s correct.@

Ms. Beeker: AThe restrictive covenants address that as well. They say that common areas shall be all of the property shown, and I=m assuming Exhibit A is going to be that, it=s not attached here, with the exception of those portions upon which houses are built or shall be built. So I mean we could just put that in the condition language, the same language. Basically, what that=s saying is everything is open space except the footprints of the building.@

Ms. Smith: AIf the covenants say that, that=s OK.@

Ms. Beeker: ADoes that satisfy you?

Ms. Smith: AYes.@

Commissioner Moyer: AWell while Mr. Crowell is there, can we go back to 15 and get that resolved while we=re here?@

Mr. Crowell: AAbout the erosion control plan? Prior to disturbing any ground on the project, we will be required by the State to have an erosion control plan which we will have before we start grading which we can submit a copy to the Planning Board or whoever would like to see that prior to breaking ground on the project if that would satisfy everyone.@

Chairman Hawkins: AOK. Does that clarify your question, Bill? Anything over an acre, I think you have that.@

Commissioner Moyer: ABut it=s the at what point that Karen wanted the clarification on.@

Chairman Hawkins: AThat=s why I was asking her because I had read somewhere you had just to have applied for it and then you got started and at some point you had to get it back before you got the final plat but he says he=s already got it so...@

Mr. Crowell: AWe don=t have it yet but we really by the law we can=t start working until we do have it.@

Ms. Beeker: ADo you have to have it for the entire project before you can start working?@

Mr. Crowell: AYes.@

Ms. Beeker: AFor the whole project?@

Mr. Crowell: ARight, if you disturb more than an acre of land.@

Ms. Beeker: ANot just a portion? So you=ll have it for the whole road and everything at one time?@

Mr. Crowell: AThat=s correct.@

Chairman Hawkins: AThank you. At this time, if there=s no questions for Karen, let me ask for additional parties evidence. I think Mr. Billingsley or...@

Mr. Billingsley: AThe reason I=m here is our property borders the proposed development on the northern side, you see right there. And what, I=m currently living there with my wife and three sons. It=s owned by my Mom. The situation that is a little bit disturbing to us is the proximity of this Loop Road and how it comes exactly to the property line right there on the northern end. I happen to have sort of a sketch here. Just to show you where our home is located right there, the bottom rectangle is the location of where our home is and just to describe it to you, it=s about a two hundred years old log home that we=ve considered having registered as a historic site. It was once a post office here in the area but we=ve renovated it and it=s been in our family about four generations. The part that=s our concern is that at that one particular point, that Loop Road as it comes right to the edge, the northern boundary of the property, it=s basically right at our back door. We=re very close to the rear of our property. It=s about a three and half acre piece and it=s sort of a sanctuary back in the woods. Now I don=t want to impede the development of this situation here but what I would like to ask for is more of a boundary and I noticed that was one of the items six there was to be considered as a proper boundary be set up. Now I realize that a road is considered a structure so there=s no ten foot setback that would affect that, at least that=s my understanding. But, and the border of trees that I see the screening that was adopted in the plan the plans are revised, as I understand, is ending right at the edge of where that road touches. Out toward 25, it says there, you know, right to the left, it shows the buffer of trees but it stops right at my back door and I=ve got this road. Now I feel like if that road is where it=s proposed on that plan, that we=re going to have basically a lot of road noise, we=re going to have onlookers, we=re going to have some negative effects so I would like to ask that we have a setback in place there of some kind. That=s my request. Ten feet doesn=t seem like very much when we=re probably ten feet from the line ourselves. OK? There are some trees, there=s some wooded area. Most of the property is a pasture but up at the northern end there are some trees, scattered trees but it=s just that road being so close is what I=m here for. I think that if it=s built as it=s shown on the plan that it would have an adverse effect and it would be injurious to the value of our property which we don=t ever plan to sell or develop but even so I think it would be more injurious as it stands right now to our property.@

Chairman Hawkins: AAny questions for Mr. Billingsley from either the Board or the other parties at this time?

Ms. Beeker: AYou said that structure is how far from the property line in your estimation?@

Mr. Billingsley: ATen feet. Ten to fifteen feet tops. So I=m just imagining trees cleared out, a road and cars driving by behind this structure.@

Ms. Beeker: AIs there any existing vegetation between yourself and the line?@

Mr. Billingsley: AVery little. A few trees. I believe Ms. Moxley has an old barn there that=s, you know, is in ill repair of course but not very much, there=s not much of a separation there.@

Chairman Hawkins: AAny other questions, right now? Thank you. Mr. Crowell do you have any kind of rebuttal remarks that you would like to address to the situation that Mr. Billingsley addressed to the Board or any other remarks?@

Mr. Crowell: AI can probably move that road ten feet. We can purposely put it there because he did have such a cute house and wanted everybody to see it. No, I don=t think it will be a problem to pull that road back ten feet and continue our buffer strip through there.@

Mr. Billingsley: ACan I ask Mr. Crowell a question? As the road is drawn and I saw there was a diagram and I don=t know if it=s this probably not here in my hand, but a diagram of you know a culvert or a trench beside the road on this drawing, how close is the pavement to that line? Is there some separation also?@

Mr. Crowell: AYes the pavement is not as wide as the lines that are drawn there. That=s the road right of way.@

Mr. Billingsley: AOK, so how far on each side of the road what is the right of way you included in your plan? Do we know that?@

Mr. Crowell: AWell, I=d have to refer to someone that=s not under oath of any kind. Well, that is a, well there is a fifty foot right of way, a typical road section.@

Mr. Billingsley: ANow would we be talking about a loop road or a typical road at this point?@

Mr. Crowell: AWell, that=s a typical road, yeah. So if we put a ten foot buffer there I would guess that you would probably, the asphalt will probably be more like eighteen feet away from your property line.@

Chairman Hawkins: ADid that answer your question? OK. Thank you.@

Ms. Beeker: ACan we have a copy of your sketch?@

Commissioner Gordon: ACan I ask a question just to clarify? In other words, you=re saying that you could move the right of way for the road over and put an additional ten foot buffer there or are you saying that you could put the ten foot buffer on the existing right of way?@

Mr. Crowell: ANo, I will move the right of way over ten feet and just continue that buffer strip through there. I think I can massage things in that corner right there.@

Chairman Hawkins: AIs there any other questions from either the Board or the parties at this time? If not, we=ll move on to closing remarks, if there is any.@

Mr. Billingsley: AMay I have one more question, please? As you say you can massage the plans a little bit, I would appreciate it the more massaging you could do to move the road as far away as you could. You know I=m asking for a minimum but I would appreciate the maximum as you can understand. I don=t know if it could be looped on the other side of one of the buildings or I don=t know...@

Mr. Crowell: ANo, no, what happens in a corner like that with your minimum setbacks, to do that I might possibly have to make one of the units smaller at this time. It=s a bigger deal than, you know, than it might seem to massage it.@

Mr. Billingsley: AAlright.@

Chairman Hawkins: AThank you. Mr. Crowell, did you have any closing remarks that you desire to make other than what you=ve already made? Staff do you have any closing remarks?@

Ms. Smith: ANo sir.@

Ms. Beeker: AI=d like to ask about that it complies with all the...@

Chairman Hawkins: AOK, let me, does any of the additional parties have any closing remarks? OK, Angie you have some questions that you want...?@

Ms. Beeker: AWhichever staff member that reviewed this, the closest if you could come up. Have you reviewed this plan?@

Chris Timberlake: AI have.@

Ms. Beeker: AOK. The recommendations of the Planning Board were based on, were they based on your comments?@

Mr. Timberlake: AThat=s correct.@

Ms. Beeker: AOK. Other than those things that you specifically noted then, is this plan in compliance with all the requirements of the Zoning Ordinance?@

Mr. Timberlake: AIt is.@

Chairman Hawkins: AIs that all the questions you had? Now that all the evidence has been presented and closing remarks concluded, it is appropriate for the Commissioners to discuss the issues presented today. We can either vote and direct staff to bring back findings of fact, conclusions consistent with the decision of the Board=s discussion, or we can continue our discussion and decision to a later date. I would remind the Board that we have to make a written decision within forty five days. Is there any additional comments or discussion that the Board wants to have at this time? Marilyn, do you have any additional areas that you want to discuss?@

Commissioner Gordon: AWell, I appreciate the parties presenting both perspectives. I appreciate their willingness to work this situation out very much.@

Chairman Hawkins: ADon, do you have any?@

Commissioner Ward: AWe saw this plan about three or four times so I=m pretty well ready to vote.@

Mr. Crowell: AGrady, may I say one other thing? This in moving this road up ten feet, I just wanted to make sure that that=s going to be something that I can do without having to present a new plan to the Planning Board and come back before the Commissioners and delay my project, if any.@

Chairman Hawkins: AI think it would be part of our findings and therefore I don=t know that you=d have to come back to the Board.@

Ms. Beeker: ANo, but I was going to point out to the Board some of the conditions reflect that Mr. Crowell has been asked, has asked, to be able to move some of the buildings around and I do think that=s an aspect that the Board needs to decide whether you=re willing to grant him that latitude and what conditions you=re going to put in place if he=s allowed to do that. And then the other condition is I would like to do the same thing and review the restrictive covenants with Mr. Crowell and make the approval subject to that review.@

Chairman Hawkins: AI think the movement, the latitude to move the buildings is just retain the fact that you still need to maintain the twenty-foot separation, I think was one of the stipulations that the Planning Board had.@

Ms. Beeker: AIt might be helpful for Chris to talk about that a little bit just so you can understand, make sure everyone understands what they=re talking about.@

Mr. Timberlake: AThe applicant has asked to be able to move the buildings but continue to keep the twenty-foot separation. I guess he would also need to keep the ten-foot setback around the perimeter buffer. Mr. Crowell could also, the reason they=re asking for that is because some of the buildings will not be as large as others. I think some may have two car garages, some may have one and so you may have the aspect where some buildings may be moved. I guess as according to what they=re showing on the plan, they may be situated a little bit different but there still will be a twenty-foot setback between each building.@

Commissioner Moyer: AI think if the language reflected that the number of units was not increased and the general character of the subdivision was not changed, I think that would work fine.@

Chairman Hawkins: AAlong with your, Chris you still had the minimum twenty-feet and all the other parameters?@

Mr. Timberlake: ARight.@

Chairman Hawkins: ABill, do you want to make a motion?@

Commissioner Moyer: AYeah, if you want me to give it a try. I move we approve it subject to the conditions that the Planning Board has set forth in their memorandum dated August 9^th except for number 2 which I understand is not satisfied, number 6A, number 10, number 12, and I think with respect to number 15, the date would be that he received erosion and sedimentation control before any substantial work has begun on the land, I think is where we ended up. Is that right Karen? And that he be permitted to place a for sale unit on there and that he be permitted to move the road ten feet in from the boundary with Mr. Billingsley without getting prior approval and that he would continue the ten-foot buffer with the white pines between the road and Mr. Billingsley=s property at that point recognizing that he=ll do the best he can do to move it as far away as he can but that at the least there would be 10 feet.@

Mr. Billingsley: AMay I ask one more question? I don=t want to complicate it but as far as lighting, we talked about lighting a few minutes ago, Chris indicated one light on that plan. Is that correct? Exterior street light?@

Mr. Timberlake: ANo there=s actually more than that, I just circled the ones that are you see there.@

Mr. Billingsley: AIs that the closest light to my property there, the one you just circled?@

Mr. Timberlake: AYes, well there=s one here in the corner I believe.@

Chairman Hawkins: AOK. The one additional thing I think, Bill, was to review the covenants with staff and Mr. Crowell. Did you get that?@

Commissioner Moyer: ANo, I did not get that. And that the staff attorney, County Attorney, I=m sorry, please forgive me, have an opportunity to review the covenants and work out any changes with the developer. Anything else? Don, anything else?@

Commissioner Ward: AThat=s fine. There=s no trails.@

Chairman Hawkins: AAngie, do we have what you needed?@

Ms. Beeker: AI have one other statement in that this is with regard to Phase I only.@

Commissioner Moyer: AYou want that in the order? Then a Phase II would be specifically required to come back subject to the conditions of R-10, any development would be subject to R-10 conditions at a later date.@

Chairman Hawkins: AAny discussion on the motion? All of those in favor of that motion, say aye. We=ll direct staff to come back with a findings of fact. I=ll make a motion that we go out of the quasi-judicial hearing. All those in favor of that motion, say aye. Meeting is adjourned.@

All voted in favor of both motions made by Chairman Hawkins and the motion carried.

The meeting was adjourned at 5:55 pm.

APPROVED:

GRADY HAWKINS, CHAIRMAN

HENDERSON COUNTY BOARD OF COMMISSIONERS

ATTEST:

Elizabeth W. Corn, Clerk to the Board