MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON MAY 15, 2001

The Henderson County Board of Commissioners met for a regularly scheduled meeting at 7:00 p.m. in the Commissioners= Conference Room of the Henderson County Office Building at 100 North King Street, Hendersonville, North Carolina.

Those present were: Chairman Bill Moyer, Vice-Chair Marilyn Gordon, Commissioner Grady Hawkins, Commissioner Don Ward, Commissioner Charlie Messer, County Manager David E. Nicholson, County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.

Also present were: Public Information Officer Chris S. Coulson, Assistant County Attorney Jennifer O. Jackson, Planning Director Karen C. Smith, Environmental Planner Nippy Page, and Project Coordinator Bill Blalock.

CALL TO ORDER/WELCOME

Chairman Moyer called the meeting to order and welcomed those in attendance, stating that the purpose of this meeting was a public hearing on Open Use Regulation.

Chairman Moyer reminded the Board of the Joint Facilities Meeting scheduled for Monday, May 21 with a school tour at 3:00 p.m. He asked how many Commissioners were planning to attend. It appeared that all were planning to. Chairman Moyer stated, just to be on the safe side, let=s set a special called meeting for the Board of Commissioners for May 21 at 3:00 p.m., to review construction sites of certain elementary schools (Etowah, Balfour, and Fletcher). He made a motion to that effect. That will precede the Joint Facilities Meeting at 5:30 p.m. All voted in favor and the motion carried.

OPEN PUBLIC HEARING

Commissioner Messer made the motion to open the public hearing. All voted in favor and the motion carried.

Staff Comments

Planning Director, Karen C. Smith, informed the Board that the Planning Board met on April 19, 2001 to discuss the March 19, 2001 draft of the Open Use Zoning (blue cover draft) to discuss the text amendments and the map amendments and the application of open use either to part of the county or all the unzoned areas of the county. Both the text and the maps had been referred by the Board of Commissioners for their review. The Planning Board voted at that meeting unanimously (5 to 0) to favorably recommend the draft text subject to several changes:

1. Section 200-7, Definitions

C The definition of Concrete Plants should be revised so that portable concrete plants are regulated. It should be made clear, however, that a temporary use permit may be obtained for all of the regulated uses.

C The definition of Mining and Extraction Operations should be revised to exclude site preparation work.

2. Site Standards Chart

C A Separation requirement was added for all uses listed on the chart that did not

previously have such a standard and some previously proposed separation standards were decreased. As proposed by the Planning Board, all uses on the chart would have a minimum separation of 2 mile from schools. There was no change to the proposed 2-mile separation from healthcare facilities for Motor Sports Facilities or the proposed 1-mile separation from healthcare facilities for Amusement Parks.

C A Residential Density requirement of 250 in 2 mile was added for Heavy Industries, Mining and Extraction Operations and Chip Mills. The previously proposed Residential Density of 250 in 1-mile for Asphalt Plants and Incinerators was changed to 250 in 2 mile.

Map Amendment

At the April 19, 2001 meeting, the Planning Board also voted unanimously (5 to 0) to favorably recommend that Open Use Zoning be applied to all unzoned areas, except for the State and National forests and that there should be no differences in the proposed standards if the Board of Commissioners votes to apply Open Use to only a portion of the unzoned areas in the county.

Relationship Between Open Use Proposal and County Plans

Zoning decisions must be based on a plan. The proposal for the amendments to the Zoning Ordinance and Zoning Map regarding the Open Use District is part of an overall County plan for implementing land use regulations in Henderson County. The Board of Commissioners adopted the plan, in the form of the Henderson County Countywide Land Use Regulation Guide, in September of 1999 and amended it in November of 1999. The Countywide Land Use Regulation Guide supports some of the goals, objectives, recommendations and action items stated in Henderson County=s 1993 Comprehensive Land Use Plan and is one tool for implementing the Land Use Plan.

Public Notice

Ms. Smith informed the Board that tonight=s hearing on both the proposed amendments to the Henderson County Zoning Ordinance and the Official Zoning Map of Henderson County, had to the best of her knowledge, been advertised in accordance with State law and the Henderson County Zoning Ordinance and for the record, she submitted to the Clerk to the Board of Commissioners this memorandum with certifications and an affidavit of publication regarding such advertisement so that such documents may be made a part of the official record of the hearing.

Jennifer Jackson - Review of the Proposed Changes to Text/Chart

The Board has held several work sessions and public input sessions at which point various public comments were received and discussed and the Board itself took on some of those discussions.

AHeavy Industry@ definition

Changes include adding an element or prong to the definition for extremely hazardous facilities as defined in the ordinance and taking out some of the previous prongs. The new definition of Heavy Industry would read:

Heavy Industry C Any industrial use establishment that (1) is an extremely hazardous facility as defined in Section 200-32.1A; or (2) is a large quantity generator of hazardous waste (as that term is defined by the North Carolina Department of Environment and Natural Resources). Specifically excluded from this definition are those establishments that are not extremely hazardous facilities that operate in an enclosed building(s) or structure(s) having a total gross floor area of less than 30,000 square feet.

Staff recommended one more exclusion - those additional regulated uses in the open use so that if, for instance, an asphalt plant could potentially qualify as heavy industry and as an asphalt plant so if they=re specifically listed, those would be excluded out of the definition of heavy industry so that the specific standards would apply to those. That could be accomplished by adding a second exclusion that says in #2 - Those uses listed in Section 200-32.1F numbers 1 through 10.

AExtremely Hazardous Facilities@ definition

This was necessary to make the above change clearer. It reads:

Extremely Hazardous Facility C Any industrial facility that stores, handles, processes or manufactures any material, substance or product that is considered to be a Class I explosive; a Class 2, Division 2.3 gas (gases toxic by inhalation); a Class 6 toxic material or infectious substance; or a Class 7 radioactive substance or material, all as classified by the United States Department of Transportation Hazard Classification System.

AMining and Extraction Operations@ definition

One of the comments the Board heard from the public was to make sure that use did not include those businesses that essentially operate as grading and soil excavation. The following was added to the definition - Specifically excluded from this definition are:(1) those establishments or businesses with a principal use of the extraction of sand if that operation is not required to obtain a mining permit from North Carolina Department of Environment and Natural Resources, and (2) those establishments or businesses with a principal or accessory use of the grading or extraction of soils.

AConcrete Plants@ definition

The only change was to add to the definition - whether portable or non-portable.

AFencing@ definition

In order to only require secured fencing around the principal use if it is unenclosed, the following was added to the definition - around the portions of the property containing the regulated principal use, including but not limited to storage or use of inventory, materials or equipment associated with the principal use, if such use(s) is unenclosed.

ASolid Waste Management Facilities@ definition

In order to exclude those facilities developed by governmental entities; make sure that Hazardous/Radioactive Waste Disposal Facilities are still prohibited, the following was added to the definition - Specifically excluded from this definition and any regulation under this Chapter are those Solid Waste Management Facilities that are constructed and/or operated by or on behalf of any federal, state, or local governmental entity; provided, however, that this exclusion from regulation only applies to those Solid Waste Management Facilities not operating as a Hazardous Waste Disposal Facility or Radioactive Waste Disposal Facility (which are prohibited in all zoning districts).

AIncinerators@ definition

The Board also wanted to exclude those facilities developed by governmental entities; make sure that Hazardous/Radioactive Waste Disposal Facilities are still prohibited so the following was added to the definition - Specifically excluded from this definition and any regulation under this Chapter are those Incinerators that are constructed and/or operated by or on behalf of any federal, state, or local governmental entity; provided, however, that this exclusion from regulation only applies to those Incinerators not operating as a Hazardous Waste Disposal Facility or Radioactive Waste Disposal Facility (which are prohibited in all zoning districts).

ASeparation@ definition

To clarify that it is measured from the center of the protected use to the edge of the principal use of the regulated use, the following was added to the definition - principal use, including but not limited to storage or use of inventory, materials or equipment associated with the principal use, shall be situated within the stated distance from the approximate center (centroid as determined by the Henderson County Assessor=s Office) of the property on which a protected use is located.

Angela Beeker reviewed residential density in detail with the Board as follows:

AResidential Density@ definition

To reflect the changed method of measurement to centroid of parcel to property line and include formula for calculation; add rebuttable presumption that the data provided by the Henderson County Assessor=s Office is correct, the following was added to the definition - The number of residential dwelling units per acre within a specified radius beginning with the approximate center (centroid as determined by the Henderson County Assessor=s Office) of the property on which a regulated use is proposed and extending to the external property lines of the properties falling within the specified radius. For uses specifying a residential density the following information must be listed: maximum number of units per acreage (acreage must be specified as 1 acre, 2 acres etc.) and the radius in which the units and acreage should be calculated (i.e. 2 mile, 1 mile, etc.). The following formula will be used to calculate residential density:

First: Determine the number of dwelling units within the specified radius by consulting the Henderson County Assessor=s Office or by field verification, this number = A units

example: Assessor=s Office finds 250 dwelling units.

A = 250 units

Second: Determine the total area in acres within the radius specified for the use [501.48 acres in a 2 mile radius; 2,009 .6 acres in a 1 mile radius] ; this number = B acres

example: The use has a specified radius of 2 mile

B = 501.48 acres

Third: Compose a fraction by placing number A over number B; this fraction represents the total number of units over the total acres, A/B

example: 250 units

501.48 acres

Fourth: Determine the average residential density by reducing the fraction composed above by dividing both the numerator and denominator by the numerical value of A

example: 250 units/250 = 1 unit = residential density

501.48 acres/250 2 acres

For purposes of calculating residential density, the data available from the Henderson County Assessor=s Office must be provided and shall be presumed correct; however, such presumption can be rebutted by competent and material testimony and documentary evidence submitted to the Board of Commissioners during the quasi-judicial public hearing on the regulated use.

Jennifer reviewed the following regarding:

AProtected Mountain Ridges@

There was tentative consensus that the Board wanted to continue to prohibit the regulated uses on the protected mountain ridges. There was a small typographical error changed under Afire protection@ from ANational Fire Prevention Association@ to ANational Fire Protection Association@.

There was also a need for the following addition - Add definition of AExtremely Hazardous Substance@ as follows: AAny material, substance or product that is considered to be a Class I explosive; a Class 2, Division 2.3 gas (gases toxic by inhalation); a Class 6 toxic material or infectious substance; or a Class 7 radioactive substance or material, all as classified by the United States Department of Transportation Hazard Classification System.@

There was also need to correct typograpical errors by changing the separation specified between junkyards and schools from A2 mile@ to a A1.2 mile@ in the I-1 and the I-2 Districts.

There also needed to be the addition of some application requirements in the open use district, to take into consideration some of the discussions the Board had in making sure that the materials that an applicant would need to submit to the Board contain enough information on them to discern whether the standards have been met. Staff proposed under site plan, that the site plan show Aproposed location, use and dimensions of all structures and areas not within structures devoted to principal uses. All such structures and areas shall be appropriately labeled including a description of each sufficient to give the Board of Commissioners a reasonable understanding of each.@

AProposed location, use and dimensions of all structures and areas not within structures devoted to accessory uses. All such structures and areas shall be appropriately labeled including a description of each sufficient to give the Board of Commissioners a reasonable understanding of each.@

Staff also suggested that the Board revise the application requirement to delete a requirement for scaled plans for vehicle and manufactured mobile home graveyards and to add a new application requirement as follows:

A(15) Identify any and all extremely hazardous substances to be used, stored, handled, processed or manufactured and their proposed location(s) on the required site plan [All uses except vehicle graveyards and mobile/manufactured home graveyards in the OU district]@

Staff requested a typographical error be corrected by adding the R-15 District to the list of districts in which Junkyards, Vehicle Graveyard and Mobile/Manufactured Home Graveyards are prohibited.

Staff also suggested that in the AAmusement Park@ definition to make sure that camps are excluded.

Angela Beeker discussed the following with the Board.

Expansions of new facilities and expansions of preexisting facilities.

The Board had asked that staff propose some language for the Board=s consideration back at this meeting. Staff had proposed language to the Board and Angela Beeker explained how it is suppose to work as three separate scenarios, with open use adopted:

#1 A use gets a special use permit. What happens when a use that already has a special use permit expands?

#2 After open use is in place, a use is developed that doesn=t trigger the definition, so it=s not regulated but it=s still of the type. For instance, suppose it were heavy industry that=s less than 30,000 square feet. Heavy industry is regulated but because it=s less than 30,000 square feet, it wouldn=t be regulated under this. It=s a use of the type that=s regulated but it doesn=t rise to the level to be regulated.

#3 For pre-existing uses. Uses that are out there right now that predate the adoption of the ordinance.

How would you treat some sort of expansion or alteration to the uses in all three of those scenarios?

#1 For this scenario - uses that are brand new after the date of the ordinance, they get a special use permit. They=ve got their special use permit in place and now they want to expand (physically), what happens?

The way the text is written, that expansion would have to fully comply with all your standards, specific site standards and general site standards in the open use district. It was regulated when it began and any expansion or change is regulated.

#2 For this scenario - you=ve got a use that is constructed after the effective date but then it expands. If it expands by not enough to trigger the definition, it=s still not going to be regulated. If it expands enough to trigger the definition, the way the text is written is that the expansion would have to meet all the standards of the ordinance because the standards predated that use and they should have been aware of the standards when they first built so everything applies to that expansion as well, the way this is written.

#3 For this scenario - for uses that predate open use, assuming open use is adopted, there is a little bit of a break given to those uses the way this text is written. The way it is written is that the expansion would have to meet the specific site standards to the extent possible. It would absolutely have to meet the general site standards. The difference between general site standards and specific site standards - the general ones are those qualitative things, public health, safety, and welfare type things - shall not worsen traffic, congestion, noise, glare, odor and things like that. It would have to meet those site standards and presumably conditions could be imposed to bring that expansion within those general site standards. With respect to the specific site standards it might be impossible for them to meet some of your specific site standards so it would be a question of a fact in law that you would have to decide can they meet the specific site standards. Suppose that they can=t meet a 30 foot set back, the way it=s written you could tell them that you realize they can=t meet the 30 foot set back but as a condition you could require them to meet a 20 foot set back because they can meet that. It is written to give the Board some discretion to work with pre-existing industries. It is also covered where the use (operations) are altered and it basically works the same way without getting into a lot of detail. Some scenarios are provided for which no amendment to the special use permit would be necessary, for instance, for a physical expansion of facilities, if they don=t expand by more than 10% and that expansion doesn=t violate any of the standards or conditions, then they wouldn=t have to come in for an amendment but they would only be allowed to do that twice.

The Commissioners had some questions about the third scenario where an existing plant that had a nice investment and then someone builds a school or healthcare facility alongside it, knowing it is there, they had some problem saying that the existing plant could not grow. It was felt that if the existing business was located and then a healthcare or school built close to them, that it should not trigger this ordinance coming into effect on the existing plant.

Ms. Beeker felt that staff could add some language to that section 200-32.1(I) on page 9, to take care of that. Because at least three Commissioners agreed to this, Ms. Beeker will change # 3 to be consistent with the Board=s thoughts above.

It was also stated that industrial zones need to be designated as soon as possible.

Staff also suggested on page 9 to revise Section 200-64 to read as follows: AAny person violating any provision of this chapter shall be subject to the penalties set forth in Chapter 1, General Provisions, Article II. Abuse of the provisions of this chapter shall be deemed a violation of this chapter and may subject the violator to any and all applicable penalties.@

Staff also suggested to add Section 200-32.1(I) Subsequent Events as follows:

AEvents occurring subsequent to the date of an application for a special use permit for those uses in the OU District requiring such permit including but not limited to the location of a health care facility or school within the stated separation or a change in the residential density, shall not operate to invalidate the permit, or affect the ability of the use to alter or expand its facilities or operations.@

Staff will have to add language for the pre-existing uses.

Ms. Beeker stated that there are several typographical errors in the blue draft, renumbering etc. that staff asked for permission to clean up. The Board agreed.

Revised Proposed Standards Chart

Commissioner Ward raised some question regarding this chart and maximum residential density. He was given a chart to help explain how the equation works.

Public Comments

1. Allen Smith - Mr. Smith endorsed the efforts of the Board regarding open use and recommended the Board adopt it. He did raise a question regarding chip mills, stating that 100,000 tons a year is a lot of chips. That would generate about 1,000 loads of trucking in and out a month. He felt that a chip mill is an operation much smaller than 100,000 tons a year. He also stated he is a vehicle collector, and asked the Board to raise the number of vehicles one could have before being classified as a vehicle graveyard from five to ten vehicles. He also felt the vehicles should be redefined to cars, trucks, large mobile and construction equipment that would exceed 2,000 pounds.

2. Randy Neall - Mr. Neall is a resident of Edneyville. He felt that open use is a good idea if it is in place as a temporary measure. If it becomes permanent or if it becomes a way to preempt municipalities from better zoning, then its actually worse than nothing at all.

3. Dorothy Freeman - Ms. Freeman raised questions but they did not relate to open use. She read from the Zoning Ordinance Rewrite.

Chairman Moyer explained that the comments today need to relate to Open Use as this is the Open Use Public Hearing. Her concerns will be addressed at a later time in the Zoning Ordinance Rewrite.

4. Janet Stewart - Ms. Stewart distributed a one page (typed) hand-out. She stated that the open use plan is irresponsible.

5. Dwight Giles - Mr. Giles stated that open use planning is fine if it goes far enough but he doesn=t think it goes far enough. This is a good start but must go much farther.

6. Jack Reed - Mr. Reed asked if adult establishments and radioactive materials disposal could be prohibited completely?

Chairman Moyer answered not in the county, but in the open use districts. They must be allowed to go somewhere in the county.

Mr. Reed stated that an asphalt plant only 2 mile from a long term care facility is too close. He also spoke about thermal inversions that are in our community.

7. Timothy Lyda - Mr. Lyda stated the open use plan is good, it might encourage some communities to wake up. He stated this might open the door for a better way, for communities to get together and have planning sessions. He felt there should be regular community planning meetings.

8. Marion White - Ms. White opposed the open use zoning plan, even tonight the Board is still revising the plan.

9. Larry Rogers - Mr. Rogers represented Partners for Economic Progress, over 40 members. He endorsed land use planning for Henderson County, on behalf of Partners for Economic Progress.

10. Chuck Mason - Mr. Mason distributed a one page (typed) hand-out. He spoke in opposition to the open use district. He felt the plan had been gutted of all its meaningful protections except for providing a safety buffer for the occupants of schools and health facilities.

11. Joyce Mason - Ms. Mason distributed a one page (typed) hand-out. She also spoke in opposition to the plan, especially the density requirements that are proposed.

12. Mary Satterfield - Ms. Satterfield is a resident from the Lake Summit area. She endorsed option I of the open use plan, on behalf of the Lake Summit Property Owners. She hopes that more traditional zoning will follow.

13. Fred Niehoff - Mayor Niehoff stressed that he was speaking for himself, not City Council! He hopes that open use is the first step in a long process, whereby the municipalities work closely with those in county government to gradually develop land use controls, especially in those areas immediately adjacent to the municipalities.

14. Nathan Billingsley - Mr. Billingsley spoke in opposition of the open use plan.

15. Epo Albertson - Ms. Albertson spoke in opposition of the open use plan, stating that open use zoning is not reliable as is proposed and asked the Commissioners to revisit it.

16. Roger Wolff - Mr. Wolff is a land developer. He stated that the Board has the right and the obligation to tell people how they can develop their land. He spoke about the emotional issues. He stated that it is the Board=s responsibility to take the first step tonight and follow up with appropriate land use, take the emotional issues out and pass strong zoning. He stated that moratoriums are not good zoning tools.

Board Comments/Issues

Chairman Moyer reminded the Board that if there is a provision that the Board has any thought about changing, it has to be raised in the public hearing in some fashion.

Commissioner Ward raised the issue of the maximum average residential density. When the Board held the public input sessions out in the community and information was distributed, it stated something different than what we have proposed now. The public had accepted the original proposal and he felt that the Board should consider changing it back.

Since that time, staff had proposed changing from miles to acres.

Commissioner Messer stated that he would like to go back to the original proposal of 250 residences per 1 mile radius. There was much applause. This is what was presented to the people at the public input sessions. He stated that this is still a draft until its voted on and it is phase I of steps to follow.

Much discussion followed. 250 residences or units in 1 mile radius would be 8.04 units per acre.

Commissioner Gordon stated that she came prepared to vote on this tonight. She is not going to get hung up on the details. But she did feel that the Board should think about this overnight and vote at tomorrow=s meeting, as this is on the agenda for tomorrow=s meeting.

CLOSE PUBLIC HEARING

Commissioner Charlie Messer made the motion to close the public hearing at 8:50 p.m. All voted in favor and the motion carried.

BOARD DISCUSSION AND DIRECTION/Possible Action

Commissioner Ward made the motion to go with one unit in 8.04 acres in one mile for heavy industry, incinerators, and asphalt plants. A vote was taken and the motion passed four to one with Commissioner Gordon voting nay.

Chip Mill discussion

Jennifer Jackson read the definition of chip mills and stated that there are currently 17 chip mills throughout the state. Champion Paper is not a chip mill but rather a pulp mill. It was the consensus of the Board to lower from 100,000 tons per year to 50,000 tons per year.

Vehicles graveyard discussion

The Board discussed whether or not to raise the number of vehicles from five to ten. The definition reads five or more, less is unregulated and more is regulated. There was much discussion. Staff informed the Board that we get many complaints about this issue. It was the consensus of the Board to leave it at five, not to increase the number of vehicles.

Staff was asked to make the changes and bring the document back to the Board for a vote at tomorrow=s meeting.

ADJOURN

Commissioner Messer made the motion to adjourn the meeting at 8:55 p.m. All voted in favor and the motion carried.

Attest:

Elizabeth W. Corn, Clerk to the Board William L. Moyer, Chairman