MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON APRIL 17, 2002

The Henderson County Board of Commissioners met for a regularly scheduled meeting at 9:00 a.m. in the Commissioners' Conference Room of the Henderson County Office Building.

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: Assistant County Attorney Jennifer O. Jackson, Assistant to the County Manager Selena Coffey, Public Information Officer Chris S. Coulson, EMS Director Terry Layne, County Engineer Gary Tweed, Planner Melissa Peagler, Environmental Planner Nippy Page, and Fire Marshal/Emergency Management Coordinator Rocky Hyder. Deputy Clerk to the Board/Volunteer Coordinator Amy Brantley was present through ANominations@.

CALL TO ORDER/WELCOME

Chairman Moyer called the meeting to order and welcomed all in attendance.

PLEDGE OF ALLEGIANCE

Commissioner Messer led the Pledge of Allegiance to the American Flag.

INVOCATION

Rev. Gus Martschink, of the Hospital Chaplaincy Program, gave the invocation.

DISCUSSION/ADJUSTMENT OF AGENDA

Chairman Moyer added two items to AUpdate on Pending Issues@:

#2 Carolina Village Audit, and

#3 RPOs - Transportation

Commissioner Ward added one item for discussion - AProposed State Budget Cuts to County Departments@. This was added as AC@ under Discussion Items.

Commissioner Hawkins added one item for discussion - AInformation on Regional Water Authority Meeting@. This was added as #4 under AUpdate on Pending Issues@.

Chairman Moyer made the motion to approve the agenda as revised. All voted in favor and the motion carried.

CONSENT AGENDA

David Nicholson made a slight correction to the February 20 set of minutes (who was present).

Chairman Moyer made the motion to approve the consent agenda with the revision to the February 20 minutes. All voted in favor and the motion carried. The CONSENT AGENDA consisted of the following:

Minutes

Minutes of the following meetings were provided for the Board=s review and approval:

February 20, 2002, regular meeting (as revised)

March 20, 2002, regular meeting

March 28, 2002, special called meeting

Tax Collector=s Report

Terry F. Lyda, Tax Collector, had submitted the Tax Collectors Report dated April 12, 2002, for the Board=s information.

Tax Refunds

A list of 16 tax refund requests was submitted by the County Assessor for the Board=s review and approval.

Tax Releases

A list of 125 tax release requests was submitted by the County Assessor for the Board=s review and approval.

Plat Review Officer Resolution

NCGS 47-30.2 requires that all persons appointed as plat review officers be so appointed by resolution and that the resolution be recorded in the Office of the Register of Deeds. Plat review officers are charged with the responsibility of ensuring that all plats that are to be recorded comply with the plat requirements set out in the General Statutes. On September 17, 1997 the Board first adopted a resolution appointing certain named persons as plat review officers in accordance with NCGS 47-30.2. The Resolution adopted on September 17, 1997, also sets out certain procedures that all plat review officers must comply with. Copies of that resolution and an excerpt from NCGS 47-30.2 were included in the agenda packet for the Board=s review. The Board has from time to time updated its list of appointed plat review officers.

The Assessor=s Office has requested that Tina Ball be appointed as a plat review officer. Ms. Ball has now received her State certification in property mapping and is thus qualified to be a plat review officer.

A proposed resolution had been prepared and was attached for the Board=s consideration in order to accomplish this update. This proposed resolution reinstates all of those persons currently appointed as plat review officers.

David Nicholson stated that it would be appropriate and advisable for the Board to take action at this meeting by adopting the proposed Resolution in order to provide the Henderson County Register of Deeds with an updated list of review officers authorized to approve plats for recordation.

State Road Addition Petitions

Staff had received road petitions to add the following to the State Road System:

Grove Hills Drive

Pleasant Court

Bridalwood Trail

Staff recommended approval of the petitions.

It has been the practice of this Board to accept road petitions and forward them to NC Department of Transportation for their review. It has also been the practice of the Board not to ask NC DOT to change the priority for roads on the paving priority list.

NOMINATIONS

Chairman Moyer reminded the Board of the following vacancies and opened the floor to nominations:

1. Equalization and Review - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting.

2. Juvenile Crime Prevention Council - 2 vac.

There were no nominations at this time so this item was rolled to the next meeting

3. Henderson County Board of Health - 2 vac.

There were no nominations at this time so this item was rolled to the next meeting

4. Nursing/Adult Care Home Community Advisory Committee - 5 vac.

There were no nominations at this time so this item was rolled to the next meeting

5. Community Child Protection Team - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting

6. Planning Board, Henderson County - 4 vac.

At the last meeting there were six nominations as follows: Leon Allison, Corbin Williams, Larry Blair, Paul Patterson, Tedd Pearce, and Kevin Keefe.

Commissioner Gordon nominated Richmond Meadows.

The Clerk was asked to poll the Board. Each Commissioners had four votes from the seven nominees.

Commissioner Ward voted for Allison, Patterson, Pearce, and Keefe.

Commissioner Messer voted for Allison, Williams, Pearce, and Keefe.

Chairman Moyer voted for Allison, Patterson, Pearce, and Keefe.

Commissioner Hawkins voted for Allison, Blair, Patterson, and Keefe.

Commissioner Gordon voted for Allison, Williams, Pearce, and Meadows.

The four top vote getters were the appointees to the Henderson County Planning Board: Leon Allison, Paul Patterson, Tedd Pearce, and Kevin Keefe.

Commissioner Ward made the motion for Paul Patterson to fill the unexpired term of Ms. Nesbitt. All voted in favor and the motion carried.

7. Zoning Board of Adjustment, Hendersonville City - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting

8. Zoning Board of Adjustment, Fletcher - 1 vac.

There were no nominations at this time so this item was rolled to the next meeting

EMS QUALITY MANAGEMENT COMMITTEE

The Board was reminded that there are new laws and regulations governing emergency medical services that became effective on January 1, 2002. Those regulations have begun affecting the way in which Henderson County provides EMS service to its citizens. EMS Director Terry Layne is coordinating efforts to develop an EMS System within Henderson County that meets the new requirements. This System must be developed, approved by the Board of Commissioners, and submitted to the State Office of EMS for approval by December 31, 2002.

One of the requirements within the new regulations is that the County must have an EMS Quality Management Committee. This Committee must be established by the Board of Commissioners and will be responsible for the continued monitoring and evaluation of the medical and operational issues within the EMS System (that is currently under development) and for improvement within the System. Bylaws and Rules of Procedure have been drafted for the Quality Management Committee and were included for the Board=s review. These Bylaws were drafted based on the requirements within the new regulations and with input from the EMS Director and the EMS Medical Director, Dr. Crit Harley. Section IV of those proposed Bylaws outlines membership on the Committee with voting members and non-voting members all of which are to be appointed by the Board of Commissioners.

Terry Layne reminded the Board that currently EMS has an Audit and Review Panel that performs many of the duties that the new Quality Management Committee will be responsible for. A roster of these individuals who have been serving on the Audit Review Committee was reviewed. It is hoped that many of these individuals will be selected to serve in the positions on the new Quality Management Committee. The experience and expertise of these individuals will be beneficial to the Quality Management Committee.

The County Manager recommended that this Quality Management Committee be established and appointed now so that it can provide valuable input in the development of the EMS System. Continuity of membership from the EMS Audit and Review Panel to the Quality Management Committee is also recommended for the reasons stated. Use of the Committee Membership Worksheet may assist the Board with nominations and appointment to this Committee. Mr. Nicholson also informed the Board that he would be happy to serve as the County=s representative on this new Committee. We also have to appoint a Medical Facility Personnel representative. This has to be a Pharmacist or Respiratory Therapist or someone along those lines (support position).

Chairman Moyer made the motion to ratify the establishment of the Quality Management Committee for EMS and to approve the draft By-laws for consideration by the Quality Management Committee membership. All voted in favor and the motion carried.

It was the consensus of the Board for Mr. Nicholson to serve as the government representative on the Quality Management Committee for EMS.

FUNDING REQUEST

Javonni Burchett of Apple Country Transportation presented a request from Apple Country Transportation for a special appropriation from the County due to a shortfall in medical and or transportation needs. They requested an additional $21,000 in County funding.

Mr. Nicholson reminded the Board that Fiscal Year 2001-2002's Contingency Account included $60,000 for WCCA transportation. As a part of developing his recommendation to balance the Budget, Mr. Nicholson spoke to Javonni Burchett who indicated that they had no plans for these funds. However a few days later, he received an E-mail indicating that they would like to request approximately $8,000 for Medical Transportation due to a cut in State funding. He requested that Ms. Burchett provide him a letter explaining their additional request. In the letter, the request increased to $21,000 to cover several transportation programs.

Ms. Burchett explained that their biggest problem was getting people to work. They will experience a shortfall in May and June. Medical transportation has not received the budget cut they were expecting and Javonni felt that they would be fine to the end of their fiscal year for medical transportation. Ms. Burchett explained that $10,000 would take them safely to the end of the year, more money would mean that they could do more, transportation wise.

Following much discussion, Chairman Moyer made the motion to approve sending an additional $10,000 to WCCA and Apple Country Transportation (transfer the money to contingencies) to specifically fund the areas of transporting people to jobs and if necessary some of it in daycare.

Discussion followed. Commissioners expressed that they would prefer to wait and look at all departments budget cuts before giving WCCA additional monies. Commissioner Hawkins called the question on the motion on the floor. A vote was taken with the motion failing four to one, Chairman Moyer the only affirmative vote.

Commissioner Gordon made the motion that the Board consider this as part of the evaluation of all the department needs at a later point in today=s meeting or as the Board decides after getting to that agenda item (add-on). Chairman Moyer didn=t feel that a motion was necessary. This is on the agenda today as Discussion Item AC@. This will be considered in the whole picture. Commissioner Hawkins called a question on the motion on the floor. A vote was taken and the motion passed unanimously.

Terry Layne left the meeting during this agenda item.

REQUEST FOR SURPLUS VEHICLE

David Nicholson had received a request from Sheriff Erwin. On behalf of Blue Ridge Fire and Rescue Department, he requested one of the surplus vehicles from the Sheriff=s Office/County be donated to Blue Ridge Fire and Rescue Department.

Mr. Nicholson recommended that the Board reject this request. In the past, the County has agreed to provide the Fire and Rescue Departments with vehicles. However, this causes a great deal of hard feelings from the other County Departments because they were not offered a surplus vehicle. This is even a problem with the other Departments when a vehicle is donated to one of the smaller and poorer Departments such as Bat Cave.

We can provide all of the Departments with information on the availability of any leased vehicles that are turned in to the bank. They can then deal directly with the bank. Mr. Nicholson recommended that we sell these vehicles at public auction to help balance the County=s budget.

Following discussion, it was the consensus of the Board to deny this request. It was suggested that the County Manager notify all fire departments of any surplused county vehicles as well as any leased vehicles that will be turned back in. David Nicholson and Rocky Hyder will work together to set up a proposal to make these vehicles available to all the fire departments and work out a procedure to resolve duplicate requests.

David Nicholson discussed briefly some benefits that the Leasing Program has offered to Henderson County.

UPDATE ON PENDING ISSUES

HCTV - Channel #11

David Nicholson had distributed a schedule for HCTV - Channel 11 (Cable TV) for the period of 4/21/02 - 5/ll/02. He mentioned some of the programs that we air routinely on that channel. We are beginning to utilize that channel more and more. Commissioner Gordon asked staff to find out how much a tape deck would cost. David Nicholson stated that the big thing would be to run the fiber optics from the County Office Building to Old Spartanburg Hwy. to the Mediacom office.

Carolina Village Audit

Chairman Moyer informed the Board that the City of Hendersonville has agreed to pay 2 of the audit fee for the Carolina Village Audit. We need to proceed with an audit from an Independent Certified Accountant. The County Assessor=s Office will handle and his budget will cover the County part of the cost (1/2). We do plan to audit two tax years.

RPOs - Transportation

Chairman Moyer stated that this has been an on-going subject. These are Rural Planning Organizations and it is a concept that the State is pushing as a way to get better transportation planning (in their view). They are forcing at least three counties to come together to form the RPOs. They have not changed the district set up nor any of the funding mechanisms. It is tailored after the MPO concept in Asheville. Chairman Moyer has attended a number of meetings. Land-of-Sky proposed that they head up the RPO for our area and that Buncombe, Henderson, Madison, and Transylvania counties become part of it. Buncombe would only have a very small piece because most of theirs is in the MPO. The State has been encouraging this but it is not mandatory.

Chairman Moyer can see no benefit to us joining an RPO at this time. Conrad Burrell has assured Chairman Moyer that our voice will be no less by being heard directly rather than going through an RPO. Chairman Moyer asked if the Board wanted a session on this prior to making a decision, if so he will be glad to bring someone in from Land-of-Sky to make a presentation.

Following discussion, Chairman Moyer made the motion that Henderson County is not interested in becoming part of an RPO at this time. We will continue to study the area and explore the possibilities but we don=t see the benefits at this time of going into an RPO as proposed by Land-of-Sky. All voted in favor and the motion carried.

Regional Water Authority Negotiation Meetings

Commissioner Hawkins had read a couple of articles on some fixed payment schedules which he was not familiar with. He could not find where this Board had taken any action on such a schedule.

Commissioner Gordon stated that it had only been put out for discussion. Chairman Ramsey from Buncombe County first proposed it. Mayor Worley proposed some sort of structure that would have essentially been a loan without interest that no one seemed interested in pursuing. At this point no figure has been firmed up. There is nothing to vote on at this point. It is just being discussed as an idea.

Chairman Moyer stated that the City of Asheville, through Mayor Worley, put on the table instead of paying for regional water lines they would lend us the money to do the lines, a certain amount per year. One of the things in the agreement they are concerned about is that there is no cap. The group suggested that the Managers come forth with a recommendation as to how or if some type of loan scheme would work. David Nicholson, Jim Westbrook, and Wanda Greene met and looked at the loan idea and concluded that it would be illegal, after talking with someone in the State Finance area. They then looked at two other possible solutions to address the issue. AThe issue we=re trying to address is how would the other entities and the Authority honor their commitment to Henderson County to build regional water lines in Henderson County as we see the need for them.@

David Nicholson explained the other ways of getting this going - the way that the agreement is put together to handle regional water lines did not work very well. Wanda Greene suggested doing something with the possible sale of the Bent Creek property. One scenario would give the property to Henderson County and that=s all the money we get - it might be half a million dollars but it might be two hundred thousand, it might be two million dollars, depending on the sale of the property. The other scenario was to set a dollar figure, based on the cost of putting water lines across our community which does not currently have water and then they could sell the Bent Creek property to help supplement that cost coming to Henderson County. Those are ideas that have been under discussion and have been offered to the negotiation team.

As part of the negotiations the question came up as to what kind of money Henderson County would be looking for and this would have to come to the Board of Commissioners. Chairman Moyer put the figure on the table of $250,000 a year for 20 years. Chairman Moyer informed them that our Board would entertain looking at a proposal with respect to a fixed payment. He did inform them we would not look at one with respect to the loan because Chairman Moyer and Commissioner Gordon (members of the Negotiation Team) did not think that made sense.

Chairman Moyer stated that the Water Authority meeting was on Tuesday. They have had a number of budget sessions. The Authority has come forth with a recommended budget which has zero money in it to build regional water lines for any future year. Chairman Moyer stated another issue that was put on the table was that the agreement talked about the establishment of a True Authority. That has been a troublesome issue. At the meeting it was mentioned by Mayor Worley and Chairman Moyer that there have been discussions about a proposal that would create a True Authority by putting into the Authority the water treatment capabilities that are now in the Authority plus the major distribution lines that would be serving the area and then the possibility that each of the entities would then look at their own local distribution and how they wanted to handle it. The advantage to the establishment of a True Authority is the non-betterment costs that the Authority is facing over the next five years. Staff has been asked to take a look at the option of the True Authority but not all assets, just certain assets being the treatment plus major distribution lines being put into the Authority, see what the pluses and minuses of that would be, how it would work with non-betterment and if it would work obviously would free up some significant amount of monies that are necessary.

INFORMAL PUBLIC COMMENTS

1. R. S. Raby (Dick) - Mr. Raby distributed a hand-out to the Board (I did not get a copy). Mr. Raby addressed the Board with a request to rename the National Guard Armory in East Flat Rock. He represents the Henderson County Korean War Commemorative Committee. They propose that as part of the 50^th Anniversary of the Korean War Commemorative Program to have the Armory renamed in honor of the first Henderson County U.S. Army casualty killed in action in the Korean War. He has been working with our local representative, Larry Justus to come here and ask the Board=s endorsement of this proposal. He requested a letter of endorsement from the Board of Commissioners.

Chairman Moyer asked that this item be put on the agenda for a future meeting for consideration.

PROPOSED ABOLITION OF MUD CREEK WATER AND SEWER DISTRICT

Gary Tweed reminded the Board that certain of the provisions of the 12/20/2000 Agreement that the County entered into with the City of Hendersonville contemplated the abolition of the Mud Creek Water and Sewer District that was formed under Article 6 of Chapter 162A of the North Carolina General Statutes. On February 12, 2002 the Commissioners authorized Staff to begin working towards the abolition of that District. That abolition process is governed by NCGS 1652A-97.2, a copy of which was included in the agenda packet. North Carolina law allows an abolition of a water and sewer district if the Board of Commissioners can find that the need for the district no longer exists and there are no outstanding bonds or notes issued for projects within the District.

The Board took action on November 14, 2001 and on February 12, 2002 to approve the boundaries of a sewer service area in the Mud Creek drainage basin (AAmended Mud Creek Sewer Service Area@) which is to be served by the City of Hendersonville; however, the Board delayed the effective date of that service area. On February 12, 2002 the Commissioners directed Staff to proceed with the expansion of the Cane Creek Water and Sewer District. Once the Amended Mud Creek Sewer Service Area is made effective and the Cane Creek Water and Sewer District has been expanded, it is believed that there will no longer be any need for the Mud Creek Water and Sewer District. No outstanding bond or notes have ever been issued for projects within the Mud Creek Water and Sewer District. Thus, the requirements for abolition of the District can be met.

If approved, the abolition of the Mud Creek Water and Sewer District would be effective at midnight on June 30, 2002, which is just prior to the effective date of the expansion of the Cane Creek Water and Sewer District should it be approved.

NCGS 162A-87.2 does require the holding of a public hearing on the abolition of the District. Staff requests that the Board schedule such public hearing for June 3, 2002 at 7:00 p.m. Notice of the public hearing will have to be advertised as required by law. A draft Notice of Public Hearing was attached for review.

There are other related matters that must be addressed that include the following: (1) conveyance of the assets of the Mud Creek Water and Sewer District; (2) amendments to the Agreement with the City of Hendersonville; amendment to the Henderson County Sewer Ordinance; (3) expansion of the Cane Creek Water and Sewer District; and (4) adoption of the Amended Mud Creek Sewer Service Area with an effective date. Those items are either already underway or will be addressed as this project progresses.

The County Manager recommended that the Board schedule the public hearing on the proposed abolition of the Mud Creek Water and Sewer District for June 3, 2002 at 7:00 p.m.

Following discussion, Commissioner Hawkins made the motion to set the public hearing for Monday, June 3 at 7:00 p.m. All voted in favor and the motion carried.

PROPOSED EXTENSION OF CANE CREEK WATER AND SEWER DISTRICT BOUNDARIES

The Board of Commissioner had, as recently as on March 20, 2002, given Staff direction to proceed with the steps necessary to expand the boundaries of the Cane Creek Water and Sewer District. Such an extension is governed by NCGS 162A-87.1, a copy of which was provided for the Board. That statute requires a public hearing on the proposed extension after a report concerning the proposed extension is adopted and made available for public inspection and notice of the public hearing is advertised in the newspaper and mailed to the affected property owners. The statute also requires the consent of any municipality that has property lying with the proposed expansion area. The Town of Fletcher indicated its agreement as shown by the resolution adopted on April 8, 2002.

The Board looked at the proposed expansion area on March 20, 2002. That area is located in the north-central area of the County and encompasses approximately 7,400 parcels. Staff has been working to compile the addresses of those parcels so that the mailing can be accomplished.

If the Board wishes to go forward with this expansion, it would be appropriate for the Board to consider adopting the Report that has been prepared by the County Engineer. The Report, as required by law, contains a statement regarding compliance with NCGS 162A-87.1, a map showing the current boundaries and the expansion area, a legal description of the expansion area, and a copy of NCGS 162A-87.1. Once adopted, the Report will be made available to the public for inspection.

After adopting the Report it would be appropriate for the Board to take action to set the public hearing. A Notice of Public Hearing had been drafted and was included for the Board=s review. Once the date, time and location of the public hearing is set the Notice of Public Hearing will be advertised in the Times-News and mailed to the affected property owners. Staff will be using the services of SSEACO for mailing the notices.

The County Manager recommended the adoption of the Report and the setting of the public hearing. Due to the large proposed expansion area and the number of parcels affected, the County Manager recommended that the Board consider holding the public hearing at West Henderson High School=s Auditorium.

Mr. Tweed discussed briefly a change to the Statement regarding Compliance - 6,800 properties were listed as being involved. There are actually approx. 7,400 parcels involved. So potentially there could be several hundred people attend the public hearing.

Following discussion, Chairman Moyer made the motion to set the public hearing for Thursday, June 27 at 7:00 p.m. at West High School Auditorium. All voted in favor and the motion carried.

Chairman Moyer explained that although this is labeled as an additional one-half cent sales tax it is not actually. For the last two years the State has been taking our reimbursements that are legally owed to us. Last year, at the end of the year, they did give them back. This year they have withheld $650,000 additional reimbursements that should come to us and the fire departments and we don=t see any way that we=ll be getting that money. To try to resolve this crisis last year the State proposed to adopt an additional one half cent sales tax and we would no longer get the reimbursements and then in 2003 the counties would have the option of electing to continue that one half cent sales tax but we would no longer get the reimbursements. So this money that we get from this additional one half cent that we=re discussing today merely replaces the reimbursement that the State is going to take from us starting in 2003, actually they have started already but by law they weren=t to do so until 2003, in the amount of $3,600,000 roughly. AYou can obviously imagine the impact on our budget in >03 if we did not take action with respect to this sales tax is we would get $3,600,000 less from the State and would have to adjust our budget accordingly or find monies from other sources, all of which would be very very difficult.@ It is the County Commissioners= Associations recommendation (NCACC) unanimously for all counties to go ahead and proceed to take the necessary steps to be able to implement this legislation and the additional half cent sales tax. It=s possible as part of a compromise this year that we might be able to implement it earlier.

The Board was requested to go into public hearing to consider the levy of an additional 2 cent sales tax pursuant to Article 44 of Chapter 105 of the North Carolina General Statutes. According to the applicable laws, if the sales tax is levied before 2003, 90 days advance notice must be given to the Secretary of Revenue. Additionally, a 10 day notice of the Board=s intention to levy the tax must be advertised. The recommended procedure to levy this tax is as follows:

1. Board authorizes Notice of Public Hearing to be published [authorized on March 11, 2002. Notice ran on April 5, 2002.]

2. Notice published at least 10 days in advance of public hearing, but states action levying the tax will be taken on a date certain (specified in the notice) which is at least 90 days after the public hearing. [Notice ran on April 5, 2002, and stated the Board=s intention to take action on the sales tax at the August 5, 2002 meeting.]

3. The public hearing is held. The Board confirms its intent to levy the tax in 90 days at a date certain [August 5, 2002], and authorizes staff to send a notice to the Secretary of Revenue to this effect. This is the action that the Board was requested to take after the close of the public hearing today.

4. In order to levy the tax, a resolution levying the tax must be passed at the August 5, 2002 meeting. A certified copy of the Resolution is then sent to the Secretary of Revenue as a follow up.

If the General Assembly takes action to set an allowable effective date that is earlier than July 1, 2003, the Board may (on August 5, 2002) consider setting the effective date for the sales tax as allowed by the General Assembly. However if the Board action is taken at any time other than August 5, 2002, the Board would have to advertise its intent to levy the tax again, 10 days in advance of the anticipated date of Board action.

The County Manager recommended that the Board confirm its intent to levy the tax on August 5, 2002, and authorize staff to send a notice to the Secretary of Revenue to this effect.

Chairman Moyer stated that this had gone before the Mayors at an LGCCA meeting for consideration by each municipality. He asked for their support and understanding of why the County had to take this step. He was pleased that the municipalities have supported this. Mayor Johnson had given him a letter of support. He also had received a letter from Fletcher indicating their support and understanding of the situation that we are facing. We have not received anything from Flat Rock yet.

Public Input

1.Mayor Henry Johnson - Laurel Park Mayor Henry Johnson, commented that although the Town of Laurel Park has a budget probably 2-2 1/2% of what the county does the impact of these withheld funds are significant to them. They will have some real serious work arounds this coming year. Yesterday their Council unanimously passed the Resolution in support of the County adopting the Article 44 half cent sales tax.

2. Chris Carter - City Manager Chris Carter expressed his appreciation to the Commissioners for taking this issue up in such a timely manner. He stated that the City=s third largest source of revenue probably has been encumbered now by the State of North Carolina, which is the Utility Franchise Tax. He stated that it was a comfort to the City to know that the County is looking at levying this half cent sales tax. Mr. Carter expressed his appreciation for the County=s timely consideration of this tax.

Chairman Moyer had a letter from the Town of Fletcher, signed by Mayor Bill Moore - AOn behalf of the governing body of the Town of Fletcher we would like to offer our support to your Board and urge you to approve Article 44 which will allow Henderson County and the municipalities to receive the additional half cent sales tax approved by the Legislature last year. With the uncertainties of the State Budget and the holding back of local revenues, we feel that the less dependent we are on the State the better. Additional sales tax generated in Henderson County should stay in Henderson County. We strongly support the resolution and encourage the County to approve of the measure. We also appreciate the Commissioners leadership in working for all of Henderson County.@

Following discussion, Chairman Moyer made the motion that the Board confirm its intent to levy the tax in 90 days at a date certain, which would be August 5, 2002, and authorize Staff to send a notice to the Secretary of Revenue to this effect. All voted in favor and the motion carried.

Commissioner Ward made the motion for the Board to go out of public hearing. All voted in favor and the motion carried.

PUBLIC HEARING on Road Names

Commissioner Ward made the motion for the Board to go into public hearing. All voted in favor and the motion carried.

Rocky Hyder reminded the Board that the purpose of this public hearing was to receive public input from the citizens concerning the following list of road names:

RENAMED ROAD

Old Name New Name

Edward Capps Drive Sunset Crest Lane

Myrtle Hill Lane Walnut Heights Lane

Perez Lane Blue Sky Lane

Martin N. Lewis Lane Cori Drive

NEW ROAD NAMES

Jeans Way

Old Beddingfield Place

Lillian Laurel Lane

Hoot N Hollow Lane

Dogwood Cottage Lane

Johnson Valley Drive

Fay Lane

Public Input

There was none.

Commissioner Gordon made the motion to approve the list of road names as submitted by Staff. All voted in favor and the motion carried.

Commissioner Ward made the motion for the Board to go out of public hearing. All voted in favor and the motion carried.

QUASI-JUDICIAL PUBLIC HEARING to Consider an Application for a Variance from the Henderson County Subdivision Ordinance for Oleta Falls

Chairman Moyer had recused himself from this matter with the Board=s approval. Chairman Moyer stated that he would run the meeting administratively if it was acceptable to the Board and Counsel but would not participate in any discussion or action.

Commissioner Hawkins asked why Mr. Moyer felt he needed to be removed from discussion of this item.

Chairman Moyer - AI was involved in a number of discussions with the principals from Oleta Falls directly when this matter was first brought to us, when we had the special meeting and was involved in uh discussions as I say with the parties and some of the actions that were taken which makes it not possible for me to be impartial with respect to the evidence that=s presented.@

Commissioner Hawkins - AThat was at the preliminary meeting, the Planning Board, where did that occur?@

Chairman Moyer - ANo, it occurred away back. I think you may not have been here. There was only three Commissioners. But we had a special meeting to consider a request from Oleta Falls to post performance bond to connect - to carry out certain things in connection with their development.@

Commissioner Hawkins - AI remember that meeting cause I was at it.@

Chairman Moyer - AIt was in connection with that that I had the sessions.@

Commissioner Hawkins - AWell I - you know - if - can we discuss I guess our rationale because I think if - you know certainly if you feel like you can=t render an impartial decision that uh that we as a Board - it is incumbent on us to uh to uh to address that issue. I would take exception to you conducting the meeting if that be the case because in our Rules of Procedure there are several places in there where you have an opportunity to rule on evidence as the Chair and I - if you can=t be impartial on the whole thing I don=t think that it would be appropriate to conduct the meeting either and that=s my thoughts on it.@

Chairman Moyer - AAnyone else want to speak?@

Commissioner Ward - AI have no - I think if you can=t be fair in your vote I think you need to step down and as far as Rules of Procedure I think we need to follow whatever our guidelines are - that was set. I haven=t reviewed em but maybe the County Attorney can advise us on that.@

Angela Beeker - A believe that if all the Chairman does is call parties to the stand - that - that=s one thing um. Any questions of evidence or you know procedure - that kind of thing, the full Board would have to make those calls where normally the Chairman would make those calls - if Mr. Moyer does run the meeting. Um it is simplest of course you know if he does not but that=s the prerogative of the Board but if he does then his participation would be very very - would have to be very very limited in accordance with what Commissioner Hawkins is saying.@

Commissioner Hawkins - AWell I - I would make a motion that uh that Chairman Moyer be recused at his request and that uh that he not conduct the meeting.@

Commissioner Messer - AI=ve got one question before I act on the motion.@

Chairman Moyer - AYeh@

Commissioner Messer - AIf Mr. Moyer cannot conduct the meeting then it would go to Marilyn. Does Marilyn feel good about conducting the meeting?@

Commissioner Gordon - AWell uh, I think we have very competent staff that can get us through this. I wasn=t aware that this was going to be an issue today so I didn=t have a chance to prepare for it but I=m certainly - I=ve been through a number of these proceedings and I think we can - we can do that.@

Angela Beeker - AAnd if it pleases the Board, we could take a 5 minute break and I could go back and counsel with Mrs. Gordon, with Vice-Chair Gordon on it.@

Commissioner Hawkins - AI=ll call the question then and we=ll address that issue.@

Chairman Moyer - AOK. So the motion on the floor is to uh for me to recuse myself from - from this action and to have the hearing conducted by Vice-Chairman Gordon. All in favor of that motion say aye.@

AAye@ in unison.

Chairman Moyer - AAlright that passes and that=s what we will do.@

Several people were talking at once.

Commissioner Gordon - AOK do we need a recess or do we need to just follow the script.@

Angela Beeker - AI=ll leave that up to you. Before we proceed though I would ask the other Commissioners the same question - if any of you all have had contact with the applicant about this matter then you would need to do two things. You would need to state that fact today and then you would need to say whether or not based on that you feel you can be impartial or not. And so just as a matter of procedure I would ask the rest of the Board members the same thing.@

Commissioner Hawkins - AI have not and I would answer that just for the record.@

Commissioner Ward - AI have. I have contact - Mr. Ball contacted me and I directed him to County Staff and for any input . . . the county.@

Angela Beeker - ASo you can be fair and impartial.@

Commissioner Ward - AI feel like I can be fair and impartial.@

Angela Beeker - AOK@

Commissioner Messer - AI too have talked to Mr. Ball. I was not at the special called meeting back October or whenever it was but I think I can make a - you know not be impartial to the decision on this matter.@

Angela Beeker - AOK@

Commissioner Gordon - AUh I talked with Mr. Ball over the phone. I think he offered to show me the actual site. I conferred with staff and told Mr. Ball that I couldn=t do that at this point in time but I also would reserve the - the prerogative to ask that we do look at the site if we see that that would be helpful in making this decision because we will be dealing with just videos I am assuming on this. But that=s the only contact I=ve had and I think I could be impartial.@

Angela Beeker - AOK. Thank you.@

Commissioner Hawkins - ADo you want to recess now?@

Commissioner Gordon - AYeh let=s take about two minutes and just make sure that I - I think I can know what we=re doing but let=s take two minutes.@

Short recess.

Commissioner Gordon - A . . . to consider a variance request from Waterside Properties LLC for Oleta Falls Subdivision.@

Commissioner Hawkins - AI=ll make that motion.@ This was a motion to go into quasi-judicial public hearing.

Commissioner Gordon - AThank you. All those in favor.@

AAye@ in unison.

Commissioner Gordon - AThank you. Ladies and Gentlemen, a quasi-judicial proceeding is being held today on the following petition: Variance Request from Waterside Properties LLC for Oleta Falls Subdivision. A quasi-judicial proceeding, much like a court proceeding, is a proceeding in which one=s individual=s rights are being determined. The proceeding will be conducted under the Henderson County Board of Commissioners Rules of Procedure for Quasi-judicial Proceedings. Only persons who can demonstrate that they will be affected by the outcome of the decision are allowed to participate in the proceeding.

All persons who speak and participate, including any witnesses that will be called, will be placed under oath. The Board will ask the petitioner or the petitioner=s attorney what evidence the petitioner wishes to present in support of the request. After the petitioner is finished, anyone else who has expressed a desire to be a party and who the Board has recognized as a party would then be allowed to present their evidence. All parties will be given an opportunity to ask questions of all witnesses testifying in this proceeding. The Board will be given an opportunity to ask questions also. After the evidence is presented the Board will discuss the issues raised and will make a decision. The Board=s decision must be made in writing within 45 days of the hearing.

Now we need to identify all parties to the proceeding and the Board acknowledges the petitioner, Waterside Properties LLC; A. J. Ball, Agent; and the Planning Staff as parties to this proceeding. Are there any other persons present who can demonstrate that they will be affected by the outcome of this proceeding and who wish to be a party to this proceeding? If so, please come forward and state your name, address and how you will be affected by the outcome of the proceeding. Anybody else? OK, thank you.

I now request that all parties to the proceeding and any witnesses that they wish to call, come forward to be sworn. And I would ask that you give your name and address to the Clerk.@

Elizabeth Corn - AI would ask that each of you place your left hand on the Bible. If you can just touch the Bible. Raise your right hand. Do you swear or affirm that the testimony 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.@

AI do@ in unison.

Commissioner Gordon - AWe=ll give you all a chance to finish up there. Thank you. Planning Staff has prepared an overview of this proceeding and I will ask Karen to come forward at this time.@

Karen Smith - AThank you. Waterside Properties LLC is the developer of a subdivision in Henderson County known as Oleta Falls. Oleta Falls is located off State Road #1734 which at some places is Stepp Mill Road and also Union Hill Road near Dana. Under the County Subdivision Ordinance Oleta Falls was considered a major subdivision and is proposed to have a total of 79 lots on 442 acres with 215 acres of open space. Roads within the development are private. And up on the television screen you=ve seen some vicinity maps just to give you an idea of where the project is located. The Henderson County Planning Board approved with conditions both the Master Plan and the Development Plan for Oleta Falls on April 25, 2000. The developer received final plat approval for Phase I of the subdivision in November of 2000. Staff approved a revised final plat for Phase I of the project in October of 2001. Melissa is putting up - let=s see. On the monitor and on the easel are copies of the Master Plan for Oleta Falls that were approved by the Planning Board. In order to gain final plat approval of Phase II, the developer requested and received approval from the Board of Commissioners for two different improvement guarantees. On December 3 of 2001 the developer submitted to the Planning Department an application for variances from four different provisions of the County Subdivision Ordinance including a request for a variance from road grade standards of Section 170-21(c), table 1 for a 200 foot section of Bear Landing Drive in Section II. Since submitting the initial application for the variance the developer=s agent, Mr. A. J. Ball has withdrawn either by letter or verbally to the Planning Board three of the variance requests. The only remaining variance request is that which is the subject of today=s hearing - request for the grade variance on Bear Landing Drive. At the appropriate time the Board may want to confirm with the applicant that all of the other variance requests have been withdrawn.

I would like to refer the Board to copies of the Subdivision Ordinance. I didn=t know if you had yours with you today so I brought some to hand out.@

Distribution of the copies of the Subdivision Ordinance.

Commissioner Hawkins - AKaren, can I while you=re doing that can I ask is the area that we=re looking at - is this is the Phase II?@

Karen Smith - AThis is in what was called Section II on the final plat that was recorded, yes. The Subdivision Ordinance that I=ve distributed to you has sets of amendments that you passed back in March at the back; however, those amendments aren=t relevant to the sections I was gonna refer you to so I just wanted you to be aware that you had those there. Melissa is gonna put up what is in your application materials, known as Exhibit I and this just shows you the section of the road - of Bear Landing Trail that is the subject of the variance request. And if Melissa will point to that. Right there. That is in Mr. Ball=s application materials. In the Subdivision Ordinance, Section 170-21(c), Table I, which is on pages 19 and 20 of the ordinance and Section 170-21(e) on page 21 require that no grade on private local residential subdivision roads exceed 18% if the roads are to be paved. Bear Landing Drive - the road that=s the subject of the request for the variance today is such a private local residential road. According to the application materials in your packets, Waterside Properties is seeking a variance to allow a road grade of 22% for the 200 foot section Melissa pointed to on Bear Landing Drive. Again, thanks Melissa. The Henderson County Planning Board took action on the application for the road grade variance for Oleta Falls at its meeting on February 19, 2002 and voted on a recommendation for the Board and as in past hearings I will present that as evidence later on in the hearing, along with some other information about that decision.

For the Board=s information Section 170-4(a) of the Subdivision Ordinance which is on page 30 allows the Board of Commissioners to grant variances and requires an application for variance to be made in conjunction with the subdivision application. It goes on to state that in reviewing variance requests the Board must determine that an undue hardship may result from strict compliance with the ordinance and that it shall consider the physical characteristics of the land, adjacent land uses, and the intensity of the proposed development. In determining undue hardship the Board shall consider unique conditions peculiar to the site and design flexibility to preserve and protect the site=s natural features. According to the ordinance a variance, if granted, should be the minimum needed to mitigate the hardship and shall not violate the intent of the ordinance nor be detrimental to the health, safety, and welfare of the properties and/or adjacent to the subdivision. And you have a copy of the application in your packet and that application goes through conclusions that the Board must reach in order to grant the variance.

In conclusion, I did want to note that in accordance with your Rules of Procedure for Quasi-Judicial Proceedings, we did send notice of the March 21 hearing at which this item started via certified mail to the applicant and its agent. In addition we sent certified notices to owners of adjacent property and to property owners within Oleta Falls for that initial opening of the hearing. Because it was continued until today we are not obligated to send new notices but we did by regular mail notified the applicant, their agent, and the same property owners that we notified of the first hearing.@

Commissioner Gordon - AOK@

Karen Smith - AAny questions before@

Commissioner Gordon - AAny questions from anyone for Karen at this point.@

Commissioner Ward - ALet me ask Karen. On this - on the variance they=re asking on the 22% - how many lots does it serve?@

Karen Smith - AFive lots. Would you like us to point those out?@

Angela Beeker - AFor the record, could you identify those lot numbers that you pointed to.@

Karen Smith - AI believe they=re lots 30 through 34.@

Angela Beeker - A30 through 34?@

Karen Smith - AYes. On Bear Landing Drive.@

Angela Beeker - AOK@

Commissioner Gordon - AOK. If there are no other questions we will now hear evidence pertaining to this issue. The petitioner has the option of presenting his evidence first or of waiting until after staff prevents evidence and I=m assuming that you=ve chosen to come first, is that correct?@

Craig Justus - AYes mam. Good morning madame chairman, members of the County Commission.@

Commissioner Gordon - AIf you would state your name for the@

Craig Justus - AMy name is Craig Justus. I=m with the VanWinkle Law Firm here representing the applicant in this case. I won=t be testifying to you today but I=ll hopefully properly be orchestrating the testimony in terms of presenting several witnesses for you. I do have just a couple of questions for Karen and I guess from that position. Are you able to - you have to come up here. Can you hear us? Karen - I - just to the comment that Commissioner Ward asked - I just wanta clarify that. The 200 foot section serves how many lots, you said five and I - but you only said two lots.@

Karen Smith - AOh, I=m sorry, I understood the question to be how many lots did the road serve. The road serves five. He meant the section?@

Commissioner Ward - AJust the section that=s in question.@

Karen Smith - AThe section - let me look. OK that section - I=ll put it back up - serves lots 31, 32, 33, and 34 so four of those five lots on Bear Landing Trail. I=ll point those to you.@

Commissioner Ward - AThank you.@

Craig Justus - AOK. Thank you. And Karen looking at the - what=s shown as Exhibit number one I think you=ve identified. Is that a copy of the final plat that=s been recorded?@

Karen Smith - AThat is a copy of the final plat that was submitted by the applicant as part of their application materials.@

Craig Justus - AOK and has that - has your office signed off on that plat so that it could be recorded?@

Karen Smith - AWe have.

Craig Justus - AOK. Now that plat - in terms of the two hundred foot section is not the same road alignment as originally proposed on the master plan nor on the development plan approved by the county, correct?@

Karen Smith - AThat=s correct.@

Craig Justus - AAnd in fact what is different is that there is - what was approved in terms of the final plat is missing a curve, is that right?@

Karen Smith - AThat=s right.@

Craig Justus - AOK. I=m sorta generalizing the difference but that=s the difference - is that plat doesn=t have a curve that the original master plan showed.@

Karen Smith - AThat=s right and we will present a map later that will show that to the Board.@

Craig Justus - AOK. Now in the subdivision ordinance there is the power that the subdivision administrator have and that=s you, correct?@

Karen Smith - AYes.@

Craig Justus - ATo approve incidental changes to a development plan, isn=t that right?@

Karen Smith - AThat=s correct.@

Craig Justus - AAnd in your opinion with the taking out of a curve and straightening it out - would that be considered an incidental change?@

Karen Smith - AIn the scope of the larger section for a subdivision, yes.@

Craig Justus - AOK. Thank you. At this time I=d like to call A. J. Ball. I think he=s been sworn.@

A. J. Ball - AGood morning.@

Several people answered good morning.

Craig Justus - AA. J. you can go ahead and state your name for the record and where you live.@

A. J. Ball - AI=m A. J. Ball. I live at 107 Stone Valley Way, Hendersonville, North Carolina. That=s inside the gates at Oleta Falls.@

Craig Justus - AAnd uh what do you do for a living sir?@

A. J. Ball - AI=m an agent for Waterside Properties LLC. I=m actually the project manager for that development - Oleta Falls.@

Craig Justus - AAnd how long have you been the project manager?@

A. J. Ball - AUh three years.@

Craig Justus - AAnd are you familiar with the Oleta Falls development?@

A. J. Ball - AVery familiar.@

Craig Justus - AKaren for simplicity can I just run off - do you have Exhibits two, etc. or just Exhibit one?@

Karen Smith - AI do have . . .@

Craig Justus - AOK. Yes, I just want for - how bout if I just put . . . Exhibit one Oleta Falls on this or should I, Jennifer I=ll go with your guidance as well.@

Jennifer Jackson - AI don=t follow you.@

Craig Justus - AI=m just trying to make sure I get the exhibit numbers in order. Do you present an exhibit one?@

Karen Smith - I couldn=t tell Karen=s answer here.

Angela Beeker - AThe - the Board of Commissioners has a complete copy of the application submitted, that=s all that they have. Um - but the individual pages have not been identified as anything, the attachments - other than what they were identified as in the application. I think they=re called attachment one so that=s all we have.@

Craig Justus - AAnd is that already part of the record, right?@

Angela Beeker - AThat is all that the Board has.@

Craig Justus - AI=ll just identify this as Exhibit A - just do numbering. Uh can you identify exhibit A?@

A. J. Ball - AExhibit A is actually a site map of Oleta Falls - has some marketing information and it gives a description of the property. Our vision and intent when we started the development and as briefly as I can I would tell you that we looked at the property out there and decided that the four hundred and almost fifty acres was a very special piece of property in the mountains of western North Carolina that we wanted to develop it but we wanted to maintain as much of the property as we could as open common space and create, if you will, a nature preserve out there along the Little Hungry River incorporating Oleta Falls, a forty foot waterfall so we=ve taken that and only proposed to put into that property 79 lots so almost half of the property is open common space so in that vision, in that process we realized that its not a real money making situation for us but we think its a very special property. We want to share that with 79 special families and to create an environment out there that is low density, low intensity, that is a private gated community and so far we=ve been successful in doing that.@

Craig Justus - AIf I may, I=d like to hand up a copy of that for - this map that you refer to where is that?@

A. J. Ball - AThe map is on the inside. You just open it up and it=s on the inside.@

Craig Justus - AIf I could just, Madame Chairman give it - just an opportunity for you all to look at.@

Angela Beeker - AMadame Clerk, while they are doing that, if you would make sure to make this as petitioner=s Exhibit A. OK, thank you.@

Commissioner Gordon - AOK.@

A. J. Ball - ADo you have any questions about the site map and where the property lies or anything like that?@

Craig Justus - ANo, I tell you what A. J. why don=t - explain the uh - when you mention not a money making proposition I assume you do have as a goal to come up with a profit in this.@

A. J. Ball - AWe do have a goal to come up with a profit.@

Craig Justus - AOK so when you say it=s not a money making venture could you identify, using this site plan, what you mean by that.@

A. J. Ball - AUh if you look at the site plan there=s opportunity to develop property along the rivers, on the ridges, in the open areas and we chose not to do that. You could put 350 homes within this 450 acres. There are that many building sites. So we reduced the number of lots within the property realizing that that=s gonna reduce our profit margin. It=s not an unprofitable situation. We wouldn=t do that at all but in terms of looking at how much profit we would make we certainly reduced that significantly by only dividing into 79 lots. If you look along right where the word phase I is in the lower left hand corner of that map, there=s probably thirty acres there that=s flat and level that would be great development property. That becomes open space. It=s meadow and we=re gonna maintain it that way. All the lots that we have are in the wooded sections of the property and our intent is to create as little impact in that property as possible. We have very strict covenants and restrictions that limit the owners to the amount and number of trees that they can remove once they establish a building site. When they come back to us after they=ve established a building site they must do a tree and topo survey and request permission to take anything else out of the property.@

Craig Justus - AA. J. the site plan - site map that=s referred to in this Exhibit A - this was the basis of the master plan that Karen has previously testified to, correct?@

A. J. Ball - AThat=s correct.@

Craig Justus - ANow drawing the Commissioner=s attention to Bear Landing Drive, can you identify where that is?@

A. J. Ball - AUh just underneath phase II, the wording phase II in white. Bear Landing Drive is that little section that juts out toward the bottom of the map.@

Commissioner Hawkins - AMr. Ball, could I ask you a question while he=s getting that just for my clarification? It - from the map you=ve just given us it appears that uh Bear Landing basically - if I=m looking at the right lines runs perpendicular to the contours whereas most of your other roads are parallel with them.@

A. J. Ball - AThat=s correct.@

Commissioner Hawkins - AIs there a reason for that?@

A. J. Ball - AIt was the land planner that decided how that road would come out through there for best use of the property in coming up with the large lot design, trying to accommodate building sites along that ridge.@

Commissioner Hawkins - AThank you.@

Craig Justus - AIn looking at Bear Landing Drive here on the - on this Exhibit A, explain what you - but prior to the road construction is part of that Bear Landing Drive what was out in this area when you went out to view this area.@

A. J. Ball - AUh was basically a timbered area along that ridge. It had two of the old logging roads along the ridge. Nothing else was there. I mean that was it. It was just a forested ridge.@

Craig Justus - ASo along in this area prior to the construction of Bear Landing Drive, there was a logging road in this area?@

A. J. Ball - AYes.@

Craig Justus - AOK, let me show you what I=ve marked as Exhibit B. Can you identify that to the court?@

A. J. Ball - AYes. That=s the picture of the road before we began construction. That runs out Bear Landing Drive.@

Craig Justus - AIf I can hand this up to the Court. I=ll just give you a moment to look at that.@

Commissioner Gordon - AOK@

A. J. Ball - AMaybe I can further clarify where that picture is. If you look at the site map that=s right near - right in between lot 31 and the boundary between 34 and 33. That road existed and ran out through that area right there. And that=s the area that=s in question.@

Commissioner Gordon - AOK.@

Craig Justus - AAlright at the time that the decision is being made regarding the road construction, can you just walk the Board through the decision making process for how the road was actually constructed?@

A. J. Ball - AUh we went out with one of the developers - Charles Osborne and myself and James Baston, who=s here. He=s the road construction engineer. And uh walk that particular section of road. We had a surveyor in, he surveyed the road as designed by the land planner and placed things and we were out reviewing that, looking at the plan trying to determine if we could build the road in fact along that proposed route that the surveyor had laid out. As we looked at it the existing road was a much better option. It didn=t encroach on a lot. As you went into that lot there were large rocks on each side. We knew there was a rock outcropping there and we thought using the existing road was much better than trying to go through that rock outcropping.@

Craig Justus - ALet me just ask you to clarify one thing. The staking - did the staking at all encompass the existing logging road that was shown on Exhibit B?@

A. J. Ball - AIt did to a point down to somewhere between the property line between lots 31 and 30 and lot 32. The road came right over the edge of that or right over the crest of that hill.@

Commissioner Gordon - AAlright.@

Craig Justus - ASo between - really the connection of 31 and 34 on down to 32 - did the staking encompass at all the existing logging bed that you found out there?@

A. J. Ball - AYes. Yes.@

Craig Justus - AOh it did. Clarify for myself where the existing road was in relation to the staking.@

A. J. Ball - AOK. The existing road pretty much follows the same line down to lot 31 and then from there that road - as you look at the site map, that curve turns off to the right as you look down the hill and the existing road went straight across that ridge.@

Craig Justus - AOK. So the staking of lot 31 towards lot 32 did not follow the existing road bed?@

A. J. Ball - AThat=s correct.@

Craig Justus - AAlright. And in terms of the rock outcroppings - let me show you what I=ll mark as Exhibit C and Exhibit D and ask you if you can identify these two photographs.@

A. J. Ball - AYes. These are photographs of the completed road on Bear Landing Drive that depicts from the position of the pick-up truck down to where the photograph was taken - that 200 foot section of the road that=s in question.@

Craig Justus - AIs a rock outcropping that you=ve testified to - does that show up in these two photographs?@

A. J. Ball - AYes. On the right of the pavement you can see the large rocks that we encountered.@

Commissioner Hawkins - AMr. Ball would you tell me again where the rock outcroppings were. I got lost there somewhere - in relation to this map you=ve given us so I can mark it.@

A. J. Ball - AThey are - as you look at the photographs we just gave you, you=re looking up the hill back toward - from lot 32 back toward the intersection at 34 and 30 and those rock outcroppings are on the right and the left of that road, those large rocks.@

Angela Beeker - AWould it be helpful if you marked that with a pen on the plan - on the big plan?@

Craig Justus - AYou lose telecommunications.@

Angela Beeker - AOn the big plan. I think that would be fine. There should be some magic markers under the television.@

Craig Justus - AYeh, why don=t you mark on uh - thank you very much.@

A. J. marked the rock outcropping on the large map.

A. J. Ball - AAt that point we couldn=t identify . . . Is that helpful?@

Commissioner Hawkins - AShow me again where you marked.@

Commissioner Gordon - AWe can=t see the . . .@

Commissioner Hawkins - AThe eye chart test@

Several people were talking at once.

A. J. Ball - AIf you look down this ridge from the intersection here looking down, it would be on the right hand side of the road - where those . . .@

Angela Beeker - AShe=s got a b . . . in.@

A. J. Ball - ABefore we start to identify the rock outcropping itself - the only way we identified it was by the large rocks that were on the surface.@

Craig Justus - AIf you could A. J. using the aqua Major Accent Marker - if you can - looking at the photographs Exhibit C and Exhibit D - can you identify to the Board where that rock outcropping shown in that photograph is?@

A. J. Ball - AOh OK. Alright - those and these rock outcroppings are right here, along that side of the road.@

Commissioner Gordon - AOK, thank you.@

Craig Justus - AAlright thanks. (Commissioner Hawkins said something here, don=t know what) So would you testify then there are rock outcroppings on both sides of the@

A. J. Ball - AThat=s correct.@

Craig Justus - ANow the uh - the issue before the Board today is a grade variance, isn=t that correct?@

A. J. Ball - AThat=s correct.@

Craig Justus - AAnd we can at this time go ahead - you=ve withdrawn the other three variance requests that were in your original application.@

A. J. Ball - AThat=s correct.@

Commissioner Gordon - ASo that=s confirmed. OK.@

Craig Justus - AAnd as to the grade, explain to the Board your understanding of the grade at the time of this road construction.@

A. J. Ball - AMy understanding of the grade was that we knew there was a problem once we got into the construction and we made a decision that we were gonna move the road to make it align with the existing road. And at that time we began to do excavation and felt that we could meet the grade standard as we came across the crest of that hill.@

Craig Justus - AOK and Mr. Baston is the one that did the work?@

A. J. Ball - AThat=s correct.@

Craig Justus - AOK and for your information we=ll have Mr. Baston identify what he ran into when he was doing the road construction.@

Commissioner Gordon - AOK@

Commissioner Hawkins - ACould I ask this - was that for a paved road or for a gravel road?@

A. J. Ball - APaved road. Originally in phase II we were gonna do gravel roads but when we got into that terrain, we realized immediately that the only way we could maintain the roads and not have a significant cost to the homeowners was to make sure we paved those roads.@

Commissioner Hawkins - AThank you.@

Angela Beeker - AIs the road in now?@

A. J. Ball - AYes. The road is in and its paved.@

Angela Beeker - AAs shown in the - what=s attached to your application - that straight section. That is in?@

A. J. Ball - AThat=s correct.@

Craig Justus - AThe width of the logging road - can you explain to - how much had been cut as it relates to that logging road that=s in the Exhibit A photograph?@

A. J. Ball - AI would estimate it to be anywhere between 12 and 15 feet.@

Commissioner Gordon - AAre there any other questions for Mr. Ball?@

Angela Beeker - AThe logging road and the road that is put in - I don=t know if the Board understands the relation - just for clarification - is that the same road or is it almost the same road?@

A. J. Ball - AIt=s almost the same road. We follow that old logging road right down through there. There are some places where we deviated just a little bit.@

Angela Beeker - AAnd when you were talking about when you got into the construction and you ran into problems that someone else is gonna testify about - was that as to the road that=s in or as to the curvy road that=s shown?@

A. J. Ball - AThat was as to the road as we were building it.@

Angela Beeker - ABut is that the curvy one or the straight one?@

A. J. Ball - ANo, that=s the straight one.@

Angela Beeker - AOK@

A. J. Ball - AOK@

Craig Justus - ADo you have any clarification or questions about that the - we=re talking about really the reason why the curve wasn=t put in and then once that decision was made the re- what happened during the construction of that straight section. And that=s where we sorta are at right now. And that=s what Mr. Baston will be testifying to. Now at what time did you realize that the grade of the road that was constructed became an issue?@

A. J. Ball - AI knew definitively that there was a problem with the slope after the surveyor came back out and identified that section of road did not meet the standard - that overall from the intersection to the cul-de-sac at lot 32 we have a 15% grade. I was under the impression that as we built the road that we could meet the slope standard until he identified that problem I was not aware that there was an issue.@

Craig Justus - AAnd when you became aware that there was an issue, what did you do?@

A. J. Ball - AI came immediately to the planning staff because I was ready to record a plat and identified that we had a problem on that particular road as well as a curve variance which we have withdrawn now.@

Craig Justus - AAnd you have filed a performance guarantee with the County for the - reducing the grade from 22% to 18, correct?@

A. J. Ball - AThat=s correct.@

Craig Justus - AAlright. Can you tell the - identify to the Board is it - from this particular variance application is it your motivation to preserve the money that=s in the - that=s been deposited. Is that motivating you in any way?@

A. J. Ball - ANot really. The motivation is, as I started to explain our vision for the development, was to maintain the integrity of the property out there, create as less - the least amount of impact on that environment as we could, to use existing logging roads, and to avoid any more impact on the environment than was necessary so our intent was to follow existing roads, do that and not - it=s not a matter of money that we=re trying to save, what we=re trying to get back in our coffers. It=s simply that we feel that the environment is important, the amount of money to do this correction is not the issue.@

Craig Justus - AThe uh - the planning board minutes I understand will be presented or may have already been presented as part of the record but I know they will be at least and in the planning board minutes it refers to the question that the subcommittee had about trying to assign fault or responsibility for really what was put out there in terms of the road.@

A. J. Ball - AOK.@

Craig Justus - AAnd there was some - at least some confusion of whose responsibility it was. Can you state to the Board definitively today whose responsibility it is for what is actually constructed out there?@

A. J. Ball - AYes I can. The decision to make the changes were made by Mr. Osborne and myself in concern with James Baston. James simply was the person that did the construction for us so Charles and I made that decision - that we would follow the old logging road and not follow the plan as we had presented to the County.@

Craig Justus - ANow in terms of - I know the question may come up and the Commissioners may be thinking - why didn=t you at the time that you realized that the logging road would preserve the environment out there, why didn=t you go ahead and call Karen and tell her? Call the planning staff?@

A. J. Ball - AWe felt that the change was minimal and that we would not have a problem with anything that was - that would occur in the construction. We had no idea or information that indicated that there was a rock outcropping there - mass rock underneath that and it would create an issue where we would need a variance from the Planning Board.@

Craig Justus - ANow the uh - in the planning board minutes there is also a mention to the fact that there - there was a question asked whether or not you would lose any lots based on the original design whether you would lose out on any property because of the way the road was originally designed and the minutes have you answering that you would have had to take out two lots. Can you explain that to the Board?@

A. J. Ball - AYes, OK, alright. The original plan shows the same two lots and the revised plan shows the same two lots, lot 31 and 33 and when they were asking me the question we were actually on a site visit out to the property. And my response was it takes out two lots. What it does in actuality is it takes out the prime building sites on both of those lots and it creates an issue where you have much more severe slope, the lot becomes less marketable, it=s a harder build if you put the road the way it was designed.@

Craig Justus - AOK. And that=s the way it was originally designed?@

A. J. Ball - AThat=s correct. That=s correct.@

Craig Justus - A Now in terms of - if you had to do this all over again, A. J., can you explain to the Board what you would have done?@

A. J. Ball - AUh we would have come in immediately with any change that we had on the property and talked that through with the Planning Staff, certainly made the decisions in concert with their guidance and their assistance rather than making those decisions on our own.@

Craig Justus - AAnd if this Board today tells you that - well you=ve already posted a guarantee, you need to go ahead and do the work. Are you prepared to do that?@

A. J. Ball - AWe are prepared to do that. You know we made the mistake. We made the error. The reason we=re asking for the variance is we feel that if you - if we go out there and blast that rock out, reduce that grade to 18% from 22%, we gain very little. We=ve had numerous reviews of the road. As I stated the overall slope is 15% on that road yet one 200 foot section that doesn=t meet it. The issue of safety has been discussed with Dana Volunteer Fire Department. I=ve had representatives from Rocky Hyder=s office out, they=ve looked at it. Yes the road is steep, it=s steep at 18%, it=s steep at 22%. Is it any less safe, it=s real arbitrary and no one can tell me that you know it=s definitively gonna be a problem for the residents there. If the road is slick at 18% and it=s a snowy day I wouldn=t travel it til it was cleared anyway so at 22% I would have the same concern about traveling that road.@

Craig Justus - AAnd in terms of talking with the Planning Staff you=ve got phase III that you haven=t yet developed, is that right?@

A. J. Ball - AThat=s correct.@

Craig Justus - AOK. And what kind of assurances can you give to the Commission that we won=t be showing up again with the same process that we followed before.@

A. J. Ball - AOK. If I continue with the project I would personally guarantee that we will meet whatever standard that the Board has out there, that we=ll look at and assure that surveys are done timely, that we know for a fact that we meet the slope standards before we put any rock or pavement in, that we have the shoulder width that we=re suppose to have and that we build it according to the standards that are the guidelines for subdevelopment.@

Craig Justus - AWell if you run into any rock outcroppings and similar things that you=re asking the Board for a variance today, do you intend to talk to the staff before you actually do any of the construction?@

A. J. Ball - AI will be here immediately.@

Angela Beeker - ACan I ask a follow-up clarification question?@

Someone said ASure@

Angela Beeker - AWhen you - you said that as soon as you became aware of a problem you went to Karen, to the Planning Director immediately@

A. J. Ball - AYes@

Angela Beeker - AAnd you bonded bringing it to 18% grade.@

A. J. Ball - AYes@

Angela Beeker - ASo in your mind you didn=t consider Karen signing off on the plat as an approval of anything but bringing it to 22% grade, is that right? Do you understand what I=m asking?@

A. J. Ball - ANo@

Angela Beeker - AI=m sorry 18% grade. Do you understand what I=m asking?@

Craig Justus - AYes, we - the final plat is approval of the plan - the alignment of the road but at 18% and the guarantee is for that.@

Angela Beeker - AFor 18%@

A. J. Ball - AThat=s correct.@

Angela Beeker - AThat - that when she signed it you didn=t take that as permission at all to exceed 18%?@

A. J. Ball - AOh no.@

Craig Justus - ANo and she actually signed that after the road was - had already been constructed.@

A. J. Ball - AYeh.@

Craig Justus - ASo the road was already there, the surveyor could not certify the grade, he came in to Karen and said here is the survey with the alignment, the grade is off, we need to ask for these variances, uh we filed the bond so we could go ahead and record the plat. And his statement is that if the Board says well apply that bond now and put it to 18%, he=ll live with that but as James Baston will testify it=s not just an easy thing.@

A. J. Ball - AOK@

Commissioner Gordon - AExcuse me, Craig, when you=re speaking if you=ll step closer to the mike, they=re not picking you up, I=m sorry.@

Craig Justus - AOh I=m sorry.@

Commissioner Gordon - AOK. Are there any other questions at this point from any - anyone. Any of our Board members or the staff?@

Jennifer Jackson - AI have one question and I guess it=s just a request. On the map that - where the outcroppings were noted it might be helpful to the Board if Mr. Ball will show the area where the slope does currently exceed it, just mark it in a different color on the same map so you have a perspective of how that overlaps.@

A. J. was given a different color marker and Craig Justus marked the area on the map. (He offered to mark it because his hands were a little more steady).

Commissioner Gordon - AOK. Thank you. Are there additional witnesses now?@

Craig Justus - AYes Madame Chairman, I=d like to call James Baston to the stand - podium. OK, if you can spell your name for the record.@

James Baston - AJames Baston, address is 623 Duncan Road, Johnston, South Carolina.@

Craig Justus - AGo ahead and spell your name, last name.@

James Baston - AB-a-s-t-o-n.@

Craig Justus - AThank you. And James what do you do for a living?@

James Baston - AI=m construction superintendent for Homes Timber Company.@

Craig Justus - AAnd how long have you been construction superintendent?@

James Baston - AI=m with Homes Timber nine years.@

Craig Justus - AOK. And in that regard do you have any work relating to the grading of roads?@

James Baston - AYes sir, daily.@

Craig Justus - AAnd how long have you been involved in the grading of roads?@

James Baston - A27 years@

Craig Justus - AAnd what is your connection to Oleta Falls?@

James Baston - AI - the owner of the company I work for is one of the owners of Oleta Falls.@

Craig Justus - AAnd how - what services have you provided to the Oleta Falls community?@

James Baston - AI - every bit of the road that has been built to this point from day one@

Commissioner Gordon - AExcuse me, Craig, don=t forget the microphone.@

Craig Justus - AOh I apologize. I=m shy about microphones I guess. Let me show you what I=ll mark as Exhibit E and F and G and have you if you could identify Exhibit E, F, and G to the Board please.@

James Baston - AOK. Exhibit E is the existing road that was built after the changes were made, the deviation from the original plat. This is the grade that we ended up with. This is the - Exhibit E is actually the 200 foot stretch that=s in question today. Exhibit F is the same thang showing rock outcroppings on the right hand side of the road which we were actually trying to dodge and Exhibit G is the same stretch, the 200 foot that exceeded 18% grade minimum.@

Craig Justus - AIn looking at Exhibit E and F, is all the road shown on here, the 200 feet or is it@

James Baston - ANo@

Craig Justus - AWhich picture accurately reflects the 200 feet?@

James Baston - AThat would be picture E.@

Craig Justus - AAlright so - and my question just so you understand - from the forefront of the photograph where it shows the road to where your truck is, is that the entire 200 feet or does it include more than the@

James Baston - AThat includes more. The 200 feet actually begins about where the shadow crosses the road@

Craig Justus - AOK@

James Baston - AOn the lowest end@

Craig Justus - AAlright. I want to show that to the Board. Does Exhibit G, the photograph, does it more accurately reflect the entire length of the 200 foot section?@

James Baston - AIt=s greater than the 200.@

Craig Justus - ADoes it show actually more than the 200 feet?@

James Baston - AYes.@

Craig Justus - AOK. It still shows more than 200 feet?@

James Baston - AYes.@

Craig Justus - AOK. The truck in your photograph there, is that where the 200 feet starts?@

James Baston - AThat is the peak of the highest point . . . A

Craig Justus - ADoes everybody see that on the Board, where the 200 feet starts is where the truck is and where it ends is where that shadow is on Exhibit E and F.@

Commissioner Gordon - AOK@

Craig Justus - ALet me show you what I=ll mark as Exhibits H, I, and J and have you identify those photographs for me.@

James Baston - AThe Exhibit H is the grade in question pick-up setting at the very top of the grade . . . picture I is a picture of the same grade with a pick-up coming down the hill about midway. Exhibit J is a picture of the same grade with a pick-up at the end of the grade at the grade section in question.@

Craig Justus - AAnd so Exhibit J shows the pick-up truck at the end of the 200 foot section, is that right?@

James Baston - ARight@

Craig Justus - AJames if you could come over here - the uh - A. J. had marked on this master plan which is - I don=t think it=s been listed as an Exhibit uh.@

Angela Beeker - AWhy don=t we go ahead and identify it as@

Jennifer Jackson - AIt=s county Exhibit AB@.

Craig Justus - AOK. County Exhibit B, OK. So we=re looking at County Exhibit B. The - A. J. has identified with the aqua in an AX@ where he personally has observed rock outcroppings. Is that accurate from your review of the site? Did you walk all over that area?@

James Baston - AYeh, all over it . . .@

Commissioner Gordon - ACan you move just a little bit to the side so we - yeh thank you.@

Craig Justus - AAnd in terms of the rock outcropping that is shown on this photograph C and D - where is that on this county Exhibit B?@

James Baston - ALot 33 and 34"

Craig Justus - ANow the original staking, James, the original staking had the road originally coming in what relation to that rock outcropping that=s in that Exhibit C and D?@

James Baston - AIt actually went dead center from the rock outcropping. We would have had to go through it - put it in by the profile that he had staked.@

Craig Justus - AAlright now in the construction of the road and the Exhibit - does everybody have Exhibit one in your - in the packet?@

Commissioner Hawkins - AI don=t think those is marked as Exhibits@

Commissioner Ward - A . . . at the top of the page@

Angela Beeker - AThe hole punch goes through it. It does have that on there.@

Commissioner Gordon - AOK@

Craig Justus - A . . . Exhibit 1, James, in constructing the section there that=s been uh there=s a line uh two lines that have been drawn through Exhibit one. Is that - is that the area where the 200 feet is?@

James Baston - AThat=s it.@

Craig Justus - AOK. Now in constructing that area or doing the construction of that area what problems did you run into at that location?@

James Baston - AWell the - even though we deviated from the plans to make that grade work I would have had to made about an eleven and a half foot cut at the peak of the ridge um which it would=ve shortened this - it=s about 200 feet - it=s really no major deal until we got down to about eight feet and that=s where we encountered mass rock which is unrippable.@

Craig Justus - AOK so when you say mass rock what kind of rock are we talking about. Is it limestone or.@

James Baston - AOh no, it=s granite - granite.@

Craig Justus - AOK. And when you say it=s not rippable can you explain that to the Board?@

James Baston - AUh has no seams, is considered a igneous rock. It was uh - it was formed from molten rock, absolutely no seams, you=re down then to the point of drilling and blasting.@

Craig Justus - AOK. Identify - explain to the Board what steps would have to be taken in order to get below this mass rock.@

James Baston - ATo date?@

Craig Justus - AYes.@

James Baston - AOK the first thang you=d have to go in at 200 foot sections and take the asphalt and the base which is uh crushed run off and start drilling to probably around 6 to 8 feet to break the rock and get it down to grade and be able to put a cushion of material on top of that rock to do away with any fractures that would let water seep in from the outside and get under and deteriorate your base, so it=s more than just - if you=re three feet off of grade you=ve got to go at least six feet beyond that to get a good cushion. You can=t just put it right on top of the rock. So it=s a pretty major task.@

Craig Justus - AAnd what kind of blasting are we talking about?@

James Baston - AUm, it would be - it would be a controlled blast. I mean you - you=d use probably three or four miliseconds between holes and hold the delays. I mean still it=s a pretty major task.@

Craig Justus - AHow much are - we=re talking about dynamite?@

James Baston - AOh yes.@

Craig Justus - AOK, what kind of - how much dynamite are we talking about?@

James Baston - AOh it would probably take just an estimated guess - probably somewhere around 1,500 to 2,000 pounds of powder.@

Craig Justus - AAnd in terms of the effect of the blasting - what effect would that have on the surrounding area?@

James Baston - AThe top nine feet of cut that we made was nothing but chunky boulders. Um - some of em weighing in the neighborhood of 20 to 25 tons which we worked on that stretch of road for about six days to get to the depth we=ve got. Um if we shoot it our slopes on that 200 foot section - when we shoot that mass rock - it=s gonna break those walls - it=s gonna shake the side slopes loose.@

Craig Justus - AOK, now is it gonna impact - looking at the photographs, is it going to impact any of the vegetation and - and things that are - the natural areas beside this road?@

James Baston - AAt the peak of the hill it is because we=re actually gonna have to clear more - cause when we shoot that bed rock - like I say it=s gonna loosen the slope and that - I mean it=s naturally gonna find it=s own angle so it=s gonna come in the road and we=re gonna have to widen the right-of-way to do that.@

Craig Justus - AOK. Do you actually know how much blasting it=s gonna take in order to - to blast through that mass rock?@

James Baston - ANo sir, we have not done a calculation as far as cubic yards of rock.@

Craig Justus - AOK. But based on your experience of doing road construction for as long as you have, what kind of job is it gonna be, based on your review of the site?@

James Baston - AIt=s gonna be a pretty tough task. You=re probably looking at in the neighborhood of 2,000 cubic yards of rock, more or less you would be blasting.@

Angela Beeker - ACraig, can I ask a clarification question? When you=re talking about what it would take to bring it to grade, which your questions are about, are you talking about to bring it to grade on the straight path or on the curvy path?@

James Baston - AThe existing.@

Angela Beeker - AOn the existing straight path?@

Craig Justus - AYes. And in terms of leveling out@

Angela Beeker - AThat 200 feet?@

Craig Justus - AYeh, the - in looking at these photographs - is there a - does it show up in the photographs where the higher - the hump is. Is there a hump out there, James, is there a hump out there.@

James Baston - AYes.@

Craig Justus - AAlright and in these photographs, where approximately is the hump?@

James Baston - AOK Exhibit E, the pick-up is sitting on the peak, on the hump.@

Craig Justus - AOK. And so when you=re talking about bringing it down to grade, you=re talking about blasting basically where your truck sits in Exhibit E to remove that hump and bring that more in level with the remaining portion of the road right?@

James Baston - AWell you=re talking about where the pick-up is sitting plus probably an additional hundred feet behind the pick-up to start the grade.@

Craig Justus - AAnd in terms of if the curve was put in, would uh - say if you put in a curve in this particular area would that impact any of the rock outcroppings that you=ve identified on county Exhibit number E?@

James Baston - AIt would have took out - it would have took out 50 or 60% of the outcroppings.@

Angela Beeker - ACan I ask one more question? When you realized that you were gonna have a problem because of the rock and then the decision was made to go ahead with the road, did you know at that time when you finished the road that it was exceeding 18%?@

James Baston - AYes mam, sure did. We knew we had an overall of 15 but yes we knew there was a short stretch there@

Angela Beeker - AAnd your instructions were to go ahead and complete it even though it exceeded 18%?@

James Baston - AYes mam.@

Craig Justus - AAt what time would you say that you knew that there was overall 15? Is that - what point is that - is that the surveyor telling you that information.@

James Baston - ARight, right.@

Craig Justus - AOK, I just want to clarify that - when. It=s the surveyor after he=s done his calculations, that=s when@

James Baston - AThat=s when we knew we had a problem on the 200 foot stretch.@

Craig Justus - AOK. In relation to when you=re out in the field doing this work, when did the surveyor tell you that there was a problem? Was it before - was it while you were still out there grading?@

James Baston - ANo we were off of that street onto another. We were actually working in another area and A. J. is the one who came to me and told me after he had - after the surveyor had contacted him.@

Craig Justus - AOK, alright. Is that clear, the timing of that? OK.@

Commissioner Gordon - AMay I ask what - at what point of the construction were you at on the road. Was it - did you have gravel on the road, did you have it paved or was it just rough graded at the time that you knew.@

James Baston - AWe had - we had the base on it. We had crushed run stone on it.@

Commissioner Gordon - AOK@

Commissioner Messer - AWhat time of the construction did you find the big boulders and so forth that=s in place now?@

James Baston - AAt what phase did we find them? Oh as soon as we started excavating, they were right under the top of the ground, maybe - that might have had a foot of cover on em.@

Commissioner Messer - ABut you didn=t have no intent of how - of the size of the boulder then, right?@

James Baston - AOh no, no no.@

Commissioner Gordon - AAre there any other questions from any of the Board members or staff, any of the petitioners? OK.@

Craig Justus - AOK. Thank you very much James.@

Commissioner Gordon - ADo you have another witness?@

Craig Justus - AI=d like to call Mike - Michael Peace now.@

Angela Beeker - ACraig, here=s one other picture, if you want to hand it to Libby or whoever.@

Craig Justus - AIf you could tell the Board your name and where you live.@

Michael Peace - AMy name=s Michael Peace. I live in Upward, North Carolina.@

Craig Justus - AAnd uh, what do you do for a living sir?@

Michael Peace - AUh for a living, uh I am a self-employed contractor. Uh also a volunteer fireman. I=ve been a volunteer fireman for Dana Fire and Rescue for 13 years.@

Craig Justus - AAnd in terms of your work with the Dana Fire Department, do you have any specific offices that you hold?@

Michael Peace - AAt the current time I hold the position of Safety Officer. I=ve been a Line Officer for seven years and also a Board member for the past seven years, not this year but the seven years prior to.@

Craig Justus - ADoes the Dana Fire Department serve this Oleta Falls community?@

Michael Peace - AYes sir.@

Craig Justus - AOK. Have you been out to the property where we=ve been talking about this 200 foot section?@

Michael Peace - AYes sir, I=ve been on the property. I=ve rode all the roads in there just trying to familiar myself with the area.@

Craig Justus - AHave you been out there with heavy fire equipment?@

Michael Peace - AI have been out there with a fire truck.@

Craig Justus - AOK. Have you ridden this section that we=ve been talking about and that=s shown in all these photographs with the fire truck?@

Michael Peace - AUh I have driven on all roads that have been paved.@

Craig Justus - AOK. And so have you been on this particular section.@

Michael Peace - AIf it was - has been paved in the last two weeks, yes.@

Craig Justus - AAnd in terms of this particular section, do you have an opinion of what - in terms of the grade is - how that would affect the safety of being able to access these lots with heavy fire trucks?@

Michael Peace - AUh in my opinion the short amount of the grade, no it - with one fire truck you should not have no problem.@

Craig Justus - AI don=t have anymore questions.@

Commissioner Gordon - AOK, do any of the@

Commissioner Hawkins - AI have a couple of questions, if I could ask you. You said you had been out there with a fire truck. Was that a first responder, or a pumper, what kind of truck did you take out.@

Michael Peace - AI=ve been out there with an engine which is not as heavy as a tanker but the same size and I have also been out there with a small brush truck.@

Commissioner Hawkins - AAnd this - If I=m looking at these lots right the road leads up the area that I guess we=re looking at is basically would maybe have two, at most three structures on it if it was developed, am I correct in that?@

Craig Justus - AYes, it would have - the restrictions which are part of what is in your - presented as part as part of the approval limit one house per lot with - allowing to have a guest house.@

Angela Beeker - ADo you have a copy of those restrictions?@

Craig Justus - ANo but I could have A. J. testify about that.@

Angela Beeker - AYou probably need to.@

Craig Justus - AA. J. why don=t you answer Commissioner Hawkins= question. How many house structures can be located, I assume you=re talking about residences.@

Commissioner Hawkins - AYeh but what I=m wondering about is uh you know if - if it would seem reasonable to get an adequate amount of fire fighting equipment in to serve what you think is gonna be there - I mean you know if the top of the hill was a brush fire that would be something else but@

A. J. Ball - ARight. Even though we said that that road serves four lots if you look at where the crest of that hill is we=re only talking about three lots in the area downhill from the crest so you could have a maximum of six structures in there if you included a guest house. And not all those people will build a guest house but they could. They=re permitted to do that.@

Commissioner Hawkins - AThank you. That=s a question I wanted@

Craig Justus - AAnd to answer Mr. or to yes to answer Commissioner Hawkins= question about the ability to get adequate fire personnel and fire equipment down in these areas to serve these lots in question - what is your opinion on that?@

Michael Peace - AYes it would be adequate mainly because when we get in an area of that nature we have staging areas set up for tankers and we have one tanker coming in at a time instead of having a traffic jam.@

Commissioner Hawkins - AThank you.@

Commissioner Gordon - AAny - any other questions? Thank you.@

Craig Justus - AThank you very much. Uh Rocky. That=s alright. I guess go ahead and swear Rocky in.@

Elizabeth Corn - ALeft hand on the Bible and raise your right hand. Do you swear or affirm that the testimony 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.@

Rocky Hyder - AI do.@

Craig Justus - ARocky, if you=d go ahead and state your name and just generally define your job description.@

Rocky Hyder - ARocky Hyder and in this particular situation I think I=m the Fire Marshal.@

Craig Justus - ARocky, have you been out - you=ve listened to the testimony here today, have you not?@

Rocky Hyder - AYes.@

Craig Justus - AOK, are you familiar with this 200 foot section that we=ve been talking about.@

Rocky Hyder - AI=ve been on that section, yes.@

Craig Justus - AOK. Uh and do you have an opinion about the ability of your department and the services you provide to serve the lots that are - come off this particular 200 foot section?@

Rocky Hyder - AAlthough that particular section is - is steeper than the road standards and certainly we don=t advocate changing our road standards or - or even veering away from those, that particular area because of the distance of it um doesn=t show a significant ability in our ability to either get an ambulance, a law enforcement vehicle, or a fire department vehicle to that area by changing the particular slope of it, because of the distance or the shortness of the distance and also because of the way the road=s set up going in there.@

Commissioner Gordon - AAny questions. OK, thank you.@

Craig Justus - AMadame Chairman, I don=t have anymore witnesses. Uh I would like an opportunity when everything is said and done just to make some comments.@

Commissioner Gordon - AYeh, there will be a follow-up after the staff presents their evidence.@

Craig Justus - AGreat, thank you.@

Commissioner Gordon - AThank you. Uh Karen.@

Commissioner Ward - ACan we have a recess before we go into this. I gotta stretch my legs, I tell you what.@

Angela Beeker - AHow long - do you want to ask how long she thinks that her part@

Commissioner Gordon - AHow long do you think your presentation=s gonna take, Karen?@

Karen Smith - AUh probably 15 minutes if I move right through it but if there are questions and that sort of thing, perhaps longer.@

Angela Beeker - AAnyone@

Commissioner Gordon - AWhat=s the Board=s pleasure?@

Commissioner Hawkins - AWhy don=t we take a little break, I think before we get started.@

Commissioner Gordon - AWe=ll take a five minute recess just to give everybody a chance to catch their breath.@

Commissioner Moyer - AMarilyn, there=s 30 minutes left on the tape.@

Recess

Karen Smith - AUm while the staff is passing out - first I wanted@

Several people were talking here.

Chris Coulson - AI=m not rolling yet@

Commissioner Gordon - AOh, I=m sorry I thought you were.@

Commissioner Hawkins - ACrank it up@

Commissioner Gordon - AWhy don=t you go ahead and pass those out, I don=t think there=s any problem with that. Are we ready now? OK, Karen you can continue now please.@

Karen Smith - AThank you. First, just for the record uh I was gonna enter into evidence the packet that the Board of Commissioners have. I think that was discussed earlier but I was going to do that as well. If that=s acceptable. And I did - do I need to review those items with you? I know you=ve all been through them. I wasn=t sure if I would go first or second so.@

Angela Beeker - AI think for the record it wouldn=t hurt.@

Karen Smith - AIt wouldn=t hurt@

Angela Beeker - AJust to run down@

Karen Smith - AOK. You can all go to your packets that were in your agenda books. The application materials are contained in this packet and those were numbered with little ones up in the corner, that was the sole application materials that we received from Waterside Properties. It consists of the application form, uh attachment one to the application form which contains the applicant=s reasoning for the variance, attachment two to the application which was a narrative on the variance, attachment three was a letter from Dana Fire and Rescue, Exhibit one of the application which was what has been shown before - a copy of a portion of the final plat for section two, and Exhibits two, three and four of the application which were really in relation to the variance request that had been withdrawn so those really are not subject to the hearing today.

Also in your packet labeled with the number two was a memo from Mr. Ball withdrawing two of the initial variance requests and then item three was a vicinity map, item four was a map showing the property boundaries and the lots recorded in section one, item five were reduced copies of the master plan in four sheets that comprise the development plan for Oleta Falls, all that were approved by the Planning Board with conditions on April 25, 2000. Sheet four of those is the dwelling plan showing Bear Landing Drive and I do have certified copies of those Exhibits in the other packet. So that was your agenda packet.@

Angela Beeker - AThe packet. It=s acceptable for those to be in evidence, just - Madame Chair?@

Commissioner Gordon - AYes, we accept those into evidence@

Angela Beeker - ADo you have any objection? OK@

Karen Smith - AThe uh second packet of information which we=ve just handed up to you, um I=d like to review those items with you one by one and as we go through I=ll point out some items for the Board=s consideration but we do want to enter all of this into the record, if there are no objections.

Exhibit A of your packet is a certified excerpt of the minutes from the April 25 meeting at which the master plan and development plans for Oleta Falls were approved with conditions.

Exhibit B is a certified reduced copy of the master plan, approved with conditions by the Planning Board. It is the same as the master plan that is shown on the board. Melissa is that still up? OK. The reduced copy and the full-size copy are the same and I think the Clerk will have the full-size copy.

OK Exhibit C-1 through C-4 are the four sheets that comprise the development plan and Exhibit C-4 is the development plan showing Bear Landing Trail and you have a full-size copy Melissa is gonna put up but you also have reduced copies in your packet. OK Exhibit D - these are uh records - D & E excuse me - records related to the improvement guarantee approved by the Board of Commissioners on October 31, 2001.

Exhibit D is the minutes from your special called meeting on October 23, 2001, where you reviewed and approved the request for an improvement guarantee for various items within Oleta Falls. Um the improvement guarantees were proposed to allow Waterside Properties to deposit funds within the county - with the county to cover the cost of correcting several improvements including the grade issue on Bear Landing Drive. Such improvement guarantee allowed the developers to record a final plat for a section of the subdivision which was phase II and enable them to sell lots prior to the completion of the guaranteed improvements. Page - excuse me the third paragraph on page three of the minutes, if you can find that - is one thing I did want to point out. This was considered by the Planning Board. It shows that I asked the applicants if they could accomplish the tasks as presented and Mr. Donovan of Waterside Properties responded that they fully intend to meet the county=s requirements and that construction was to begin after the grand opening.

Exhibit E is the actual executed performance guarantee agreement for that improvement guarantee for the road grade and other issues and if you turn to the second to last whereas paragraph in Exhibit E you=ll see um that we did include language as a result of the meeting - where the developer acknowledged and agreed the above required improvements may not qualify for a variance under chapter 170 of the Henderson County Code and I will just remind the Board that that does include all of the issues that were under consideration for the improvement guarantee but it also included that grade variance request.

OK the next Exhibit is not in your packets because we did not have a reduced copy but this - Melissa is putting on the board now Exhibit F which is the full final plat for phase II of Oleta Falls. You=ve seen a portion of the - this copy previously um and this is the final plat that I approved on October 24, 2001 following the deposit of the funds required by the improvement guarantee and the performance agreement for the grade and other issues. And this plat um and I think this might speak to something that was brought up earlier - the plat contains a note from the surveyor that acknowledges among other things that part of Bear Landing Trail does not meet the grade requirements of the subdivision ordinance so when that was signed that note was on there, knowing that the improvements had been guaranteed. OK the next Exhibits are in your book or your packet.

Exhibit G, H, and I which are records from the December 18, 2001 meeting of the Henderson County Planning Board. These - Exhibit G is an excerpt of the minutes from the December 18 meeting where Waterside Properties first brought forward their application for the variance uh - to walk you through those very briefly. Page one is the minutes and reflects comments I made to the Planning Board about the request for improvement guarantees uh for items that were also subject to the variance application and reflects comments I made to the Planning Board about the request for improvement guarantees for items that were also subject to the variance application. Page three of the minutes in the second paragraph shows comments made by Mr. Ball regarding the need for a variance on grade for Bear Landing Trail and also speaks a little bit to when he learned about the grade problem and I don=t know that this is necessarily in conflict with what was said earlier. Uh pages 4 and 5 of the minutes reflect the discussion that occurred between Planning Board and the developers about the variance request. Of particular relevance to the grade variance are the paragraphs that discuss the relationships between the variance request and the improvement guarantees and the developers approach to the project. Finally the last page of the minutes indicates that the Planning Board sent the variance application to a subcommittee for review and a recommendation. Uh there was a - the subcommittee actually met twice on that application and did conduct a site visit during their first meeting.

Exhibit H is - is a copy of a Planning Staff memo to the Planning Board for the December meeting - December 19, 2001 meeting and it contains some of the background information on the variance request which you=ve had in your packets as well. Uh page four contains some staff comments regarding the grade variance request and I did want to point out that uh those comments at that time did note that we didn=t believe that the grade posed a safety concern as the road serves um - the total road serves five lots and the grade problem spans 200 feet um we did not at that time of course have the benefit of having sat through the Planning Board discussions and hearing um the evidence that was brought forward and that sort of thing but just based on what we had seen in the application and the letter from the Dana Fire and Rescue, those were our comments at that time. Um the - I was trying to think - I think that=s all I needed to say about that at this point.

Exhibit I is a copy of the staff memo to the Planning Board that I wrote and had to do with the improvement guarantees and this was actually presented at the meeting in December of 2001 to the Planning Board. In that memo I explained my recollection of how the improvement guarantees for the grade and other issues came to pass. You=ll find that in there and in the last paragraph of the first page on the memo I explained that Mr. Ball informed staff of the grade problem prior to an inspection of the section of Oleta Falls and he was concerned about getting the final plat recorded for lots in time for a second grand opening of Oleta Falls. We discussed options and I stated that if terrain and other obstacles were issues then a variance might be an option. Mr. Ball had asked about improvement guarantees however I do not recall that I encouraged this option. Um the developers felt that certain improvements couldn=t meet the standards of the ordinance. The memo notes that the developers decide to pursue the improvement guarantee and on page two goes on to inform the Planning Board of the comments made by the developers at the Commissioners= meeting on the improvement guarantee. It does also note that there was nothing in the performance agreement that absolutely prevented an application for a variance however.@

Commissioner Hawkins - AKaren, could I stop you there. That almost seems in conflict with the items you pointed out earlier as to the agreement of - which I thought was pursuant to that same meeting in October so I don=t understand those two separate statements?@

Karen Smith - AI=m not sure if I understand your question.@

Commissioner Hawkins - AYou had a - when we were looking at the - at the whereases - was that not on the performance guarantee?@

Karen Smith - AIt was. It was not an absolute prohibition against a submission of a variance.@

Commissioner Hawkins - AOK@

Karen Smith - AIt didn=t - the developers did not agree to that strong a statement.@

Commissioner Hawkins - AThank you.@

Karen Smith - AOK. Exhibits J and K are records from the February 19, 2002 meeting of the Henderson County Planning Board with Exhibit J being the minutes from that meeting at which time they heard the report and recommendations of the subcommittee that studied the variance application and actually took action on the request for the grade variance. And I should - I=ve got Tedd Pearce standing here who=s the Chairman of the Planning Board who may have some information to add as well regarding the Planning Board=s consideration and recommendation. Page one in the minutes shows that in the portion of the subcommittee report on the grade variance the subcommittee Chair indicated that there were some items that had come up since the subcommittee had made its recommendation and you=ll see that recommendation in Exhibit K. Uh the Planning Board reviewed a set of findings drafted by one of its members that propose the Planning Board be - take consideration of in making a recommendation on the grade variance. Such findings are contained on pages one and two of the minutes and the last sentence on page three of the minutes through the beginning of page six shows a lengthy discussion that took place between Planning Board members and between the Board and Mr. Ball as well as the motion and vote of the Planning Board. Some items of note are comments indicating the concern of some Planning Board members about the depiction of the subject portion of Bear Landing Trail on the final plat compared to that on the improved development plan and how if the development plan had been followed the grade variance might not have been necessary. Also comments about the limited improvements in safety that would be gained by reducing the grade to the required 18%. The developers response is to the Planning Board comments and comments regarding decisions the company had made. The Board may want to take some time at some point to review these minutes in - in detail when you have some time if you take some time between here and a decision. Exhibit K is a certified copy of a Request for Board Action Form that was submitted by Planning Staff to the Planning Board for February 19, 2002 that summarized the recommendations of the subcommittee on the variance request and the Board will see from this that the subcommittee=s recommendation on the grade variance on page two states that the subcommittee recommended approval based on findings and included Mr. Ball=s testimony that they were not aware of the grade variation until after the road was completed and that the grade was not of their own doing but was likely due to topography and/or surveying errors. Exhibit L um is a memo that I wrote to the Board of Commissioners that summarizes the Planning Board=s action uh which you just saw in the minutes from the February 19, 2002 meeting. Um the - it indicates that the Planning Board voted five to three to send the Commissioners an unfavorable recommendation on the grade variance based on a set of eighteen findings of fact. These findings are spelled out in Exhibit L and are in more detail in those minutes from the February 19, 2002 meeting. I assume the Board can read through that, if you want me to read it into the record I can but it=s@

Angela Beeker - AIf I could just um ask you just a general question. All the memo in here from you do you readopt today as your statement under oath?@

Karen Smith - AFrom me?@

Angela Beeker - AFrom you, yes@

Karen Smith - AYes@

Angela Beeker - AUm and I would ask Melissa the same thing. You - you were sworn in weren=t you? Um the memos from you would you readopt today as your statement under oath?@

Melissa Peagler - I could not make out Melissa=s words. She was not at the microphone.

Angela Beeker - AUm yes that they are true to the best of your knowledge, information, and belief.@

Melissa Peagler - AUm as far as being . . .@ I could not make out Melissa=s words.

Angela Beeker - ACome to the mike. The - the letters will serve as evidence and the contents would serve as evidence for the Board also and so I would like for you to say whether you can um adopt those today as being true, under oath and adopt them.@

Melissa Peagler - ABased upon the information I believe I can.@

Angela Beeker - ABased upon the information?@

Melissa Peagler - AThat I had at the time.@

Angela Beeker - AYes, you can?@

Melissa Peagler - AThat I can.@

Angela Beeker - AOK@

Commissioner Gordon - AOK@

Karen Smith - AI would - I would restate what Melissa just said as far as my own, again based on the information that we had as we moved through this.@

Angela Beeker - ARight. OK@

Commissioner Gordon - AAre these all the items of evidence?@

Angela Beeker - AAnd I believe you had one other Exhibit.@

Karen Smith - AI do have one other one and I hope this will be@

Angela Beeker - ANo, I mean M, right here@

Karen Smith - AI=m sorry.@

Angela Beeker - AYou didn=t cover M.@

Karen Smith - AYeh I=m gonna get to M. That=s the next one.@

Angela Beeker AOK@

Karen Smith - AExhibit M which we=re gonna put on the easel which is a little easier for you to look at probably than what is in your packets is a - it consists of Mylar copies of portions of the final plat for phase II of Oleta Falls that I approved on October 24, 2001 and a portion of sheet four of the development plan for Oleta Falls that was approved by the Planning Board on April 25, 2000 and yeh April 25, 2000. The maps were reproduced at the same scale so that one can be laid over the other to show the Board the difference in the proposed and the as-built designs of the section of Bear Landing Drive which is subject to the variance today. The Exhibit shows that Bear Landing Drive was proposed to have a curve in it which has been referenced earlier in the subject area but the final plat shows that the road was straightened. A similar map was shown to the Planning Board at its February 19, 2002 meeting and was taken into consideration in its decision. Does the Board want that passed around so you can see? What you have in your packet we couldn=t duplicate this and you have copies of each map at the same scale so if you chose you could tear it and hold it up and@

Commissioner Gordon - ACan everyone see that OK from the - from here?@

Karen Smith - AOK. Um Mr. Justus has submitted photographs. We had a video but I don=t know that it really is gonna help as far as trying to get the picture of the grade issue here so I was not gonna enter that. Um and that=s really all that I had unless Mr. Pearce@

Commissioner Gordon - AI just want to ask - these are your items of evidence, is that right?@

Karen Smith - AThese are my items of evidence and I guess you could ask the . . .@ More than one person was talking here so I could not make out what Karen was saying.

Commissioner Gordon - AOK does the petitioner agree with these items being introduced?@

Someone answered that was fine.

Commissioner Gordon - AOK thank you. OK now Karen go ahead.@

Tedd Pearce - AUh I really just came in case there=s any questions regarding the Board, its recommendations and the statements of fact. Uh I believe that one of the major justifications that I think the - those who voted opposing the variance - probably the primary thing is - came back to whether or not the hardship was caused as a result of the actions of the applicant and I believe our findings pretty much states very clearly and today=s testimony actually even though it was different than some of the testimonies we had before clearly state that the applicants knowingly made these changes and if problems were caused it=s a result of those decisions and if there=s any questions I=d@

Commissioner Hawkins - ATedd, what was the Planning Board=s recommendations? They=ve not furrowed them out in here. What page are they on? I=ve got the subcommittee but@

Tedd Pearce - AWell if you go to L@

Commissioner Hawkins - AL@

Commissioner Gordon - ACould we just state just so that the public knows - your name and your position.@

Tedd Pearce - AOK, I=m sorry, Tedd Pearce. I=m Chairman of the Henderson County Planning Board.@

Commissioner Gordon AOK@

Tedd Pearce - AIf you go to section L uh you have the Planning Board recommendations on variance request for Oleta Falls.@

Commissioner Hawkins - AOK@

Tedd Pearce - AAnd it=s two pages there and then following that were the drawings that Karen referenced regarding this map here with the overlay. We - and in that recommendation that Karen - we voted five to three to send an unfavorable recommendation on the grade variance.@

Commissioner Hawkins - AThank you.@

Commissioner Gordon - AOK are there any other questions for Mr. Pearce?@

Commissioner Ward - AThere=s only one thing I=d like to bring up Madame Chair or Acting Chair - while we=re doing this. You know time and time again we=re asked to make these decisions like this and it sure would be handy since this was postponed two or three times to have had all these documents in front of us so we could have reviewed them at home without trying to skim over like Commissioner Hawkins said in 30 seconds to make a decision that - of this magnitude.@

Commissioner Hawkins AWell I - I agree with you but I think that the problem with that is just having the information prior to it being presented and I - I - I think that - you know at least from my perspective the best thing I can do is once it=s presented to allow us enough time to go through it you know so you can sort those things out and it=s kinda the chicken and the egg thing - which one you get first but I guess to - to follow procedure we need to have this stuff introduced in this forum but that doesn=t preclude us from later on in this meeting recessing to a - a further date that we=ve had time to look those over as we should.@

Commissioner Gordon - AAnd that=s certainly the prerogative of the Board based on the amount of papers that we have here and - and there=s no way obviously that even if we took a recess we would be able to adequately go over the paperwork that=s presented and that=s - we do have 45 days in which to make a decision.@

Karen Smith - ABelieve me I=d prefer to give it to you ahead of time also but procedurally I think I have to do it here.@

Commissioner Ward - AWell isn=t the February 19^th Planning Board meeting public record?@

Karen Smith - AYes, once they were approved@

Angela Beeker - AThey are but um it=s a due process thing that the decision needs to be based on evidence presented to you at the hearing. It=s just one of those uh things that you have to kinda put up with when you=re dealing with@

Commissioner Hawkins - AIt=s an attorney thing@

Angela Beeker - AWell the court thing. It=s a court thing. It=s a court thing and@

Craig Justus spoke but was not at the microphone and I could not make out what he was saying. Laughter followed.

Angela Beeker - ABut I think that you have 45 days from when you conclude the hearing to do your decision so if you were to - you=ll get to this later but if you were to recess to another date - hold everything open um you would have 45 days from that date to make your decision.@

Commissioner Gordon - AOK. Are there any other questions from any of the Board members or petitioners for Mr. Pearce? Thank you. Karen, do you have anyone else to bring forward?@

Karen Smith - ANo@

Commissioner Gordon - AUh has all evidence been given now by both parties. If so, we will go to closing remarks. The petitioner has the option of making closing remarks now or asking staff to make theirs first, it=s up to you.@

Craig Justus - AThank you Madame Chairman, members of the Board. It=s important for your decision to figure out what the issue really is. Um and I would say to you that there are a number of things that have occurred in the past history that has led up to this that may not be relevant to really what the issue is. If I could turn your attention to the Subdivision Ordinance and the Variance Standards in that Ordinance. I believe as Karen had identified in her intro they are section 170-48 and this is - this is the language that - that you or I believe are to look at in terms of our variance application. Um and in looking at this language you will see that the - the issue is whether or not the - we have shown undue hardship in this case and if you look there is a - there=s a section here that uh identifies what you would look at and consider and I think Karen went over those. They are basically the fourth line down starting with >the Board shall consider physical characteristics of the land, adjacent land uses and the intensity of the proposed development=. I think the - the next line for us is - is the critical line in this cause it really solidifies what undue hardship is and that is in determining an undue hardship the Board shall consider unique conditions peculiar to the site and design flexibility to preserve and protect the sites= natural features. Um on down it talks about things that obviously that you want to avoid with granting a variance - the primary one it - well there are two really primary ones, one is you want to grant a variance that=s consistent with the intent of your ordinance and secondly you want to make sure that you do not cause a detriment to the health and safety and welfare of the folks that may be affected by if at all. It is important to realize that you have a variance process in here so it - you should not take - associate any blame on the applicant for coming to you to ask for a variance. Uh as long as we meet the criteria here then - then you certainly have the discretion to give us the variance in this case. Uh you will see in the Planning Board minutes and a lot of leading up to this that uh - there=s a lot of things that I think my client would readily admit that they would do differently so - the principle one being that at the time that they were out in the field realizing that what had been staked uh did not fall in - just in this 200 foot section - that what had been staked did not fall within that existing logging bed but they should have stopped at that point and called Karen and said look we=ve got an issue. That is my client=s failure in this. Uh - but I don=t think it=s a failure that defeats the ability to come and ask for a variance - uh because really the variance is driven by whether or not out in that area - on the ground in the land there is something that is unique out there that causes a hardship. Uh I would point out to you that and I think this is important to understand - the issue is not the fact that the road is being realigned uh the issue is really not whether or not we straightened out this road and didn=t put in the curve because if you remember Karen testified that within the subdivision ordinance she has the power administratively to make a realignment change and that - you can find that in section - and I=ll point that out to you that power - 170-16c in the subdivision ordinance says that the Subdivision Administrator has the power to make changes - incidental changes to any development plan and she testified that removing the curve in this instance and straightening it out constituted, in her opinion, incidental change so what should have happened is the developer should have said we have a change out here that we would consider immaterial but it=s going to create a tremendous amount of benefit to us in that we=re not going to have to take out these rock outcroppings and we=re not gonna have to take out all these trees and we can utilize the 15 feet of logging bed we=ve already got out there and so give - touch it and say we can do it and that=s what should have happened. But she has that power and the final plat reflects that the road alignment is not the issue. The issue today is the grade along this 200 feet - here - and that is the question of whether or not there is an undue hardship in making that 22% come down to 18 and in terms of the uh testimony here and I believe they all fit within the criteria there is a special situation out at that property that made it an undue hardship to go from 22 down to 18 and that is the mass rock that - that James Baston testified to is when they were cutting down they hit. Now at that point in time they didn=t know that if they didn=t go past that that they would violate grade. They didn=t know that for sure until the surveyor came out after the - according to James, after the rock had been put in, the base of the road had been put in - it became an issue at that point A. J. immediately called Karen and said we=ve got a problem. We have a problem we acknowledge. But in terms of blasting that 200 feet, what is the benefit associated with that, well there is no safety benefit associated with that, you had your own employee testify about that and the Dana Fire Department testified about that. Well what is the detriment? Well the detriment is if you start blasting in that area then there are a number of environmental problems that can result from that one of which is you could impact the rock outcroppings on either side. Um anyway it causes - blasting is not an easy thing and it can cause problems out there. Um and we would contend that although the original design was not followed there was a reason for straightening it out and they testified about the rock croppings out on both sides of where the road was straightened out and trying to protect that and that=s what necessitated really using that straightened section instead of going around in a curve, is to protect the features that are on both sides of that straightened section that was these rock outcroppings and that=s what your ordinance allows. This is different than a zoning ordinance where you have - you got folks that - that may not want a shed or a outbuilding within a setback and they may come and say you=re affecting me. Here you=re not affecting anyone. The only people you could potentially affect are those folks that live down below those four lots and we have brought - if Rocky Hyder had said it=s going to be a problem or the Dana Fire Department had said it was going to be a problem, we wouldn=t be here today but they=ve said it=s not going to be a problem to leave it at 22% and there are a number of things that come up at - certainly at the Planning Board level that really I think are not very relevant to the issue. You heard Mr. Chairman Pearce say well the applicant is at fault and I think what they=re looking at is maybe part of the variance application uh and I would say to you that your variance application deviates from what your subdivision ordinance says. I think your variance application is - sets forth the zoning requirements for a variance and - and not the subdivision requirements cause if you compare the two there is language that is different, one of which in the application for the - for this variance it said is there anything that=s the fault of - is the - the problem the fault of the applicant. Your subdivision ordinance if you look in that section doesn=t say that. Your subdivision ordinance is strictly is there something out there on the ground that causes an undue hardship and it doesn=t add what your zoning ordinance adds about is the applicant at fault. Regardless the applicant is not at fault in this case. There is fault that lies with the applicant concerning the process. He should have called up Karen but as Karen indicated it=s just a simple administrative process to say this is an incidental change. OK, that on paper=s done and then they start digging, they hit the rock, it=s still - the rock is there. We didn=t create the rock being there. We didn=t create the problem out on the site, it=s there because God put it there and what we=re asking is permission to basically leave the road as is and not have to blast through that rock mass there and potentially cause damage to the environment both certainly there and the surrounding area and it=s - in our mind is very - it=s an incidental variance that we=re asking for but a strong point that we want to make in all this is we=ve got phase III coming up and so we=ve got to continue to do business with this county and whatever decision that you make today they=re gonna live by it and they=re going to and A. J. certainly told you they=re gonna do better about understanding process and the next time they run into a problem and want to realign something, even if it=s incidental they=re gonna ask Karen first and make sure it=s OK so this doesn=t come up in phase III and whatever decision you make they want to come away from this with a good relationship with the county, not a bad one and if you look at the brochure that we handed out that shows what kind of developer we=ve got here. It=s a developer that=s very concerned about the environment, concerned about creating a natural preserve out there and not cutting you know trees that are not - unnecessary to cut, not removing rock outcroppings that are unnecessary to remove while preserving open space, preserving land for the people to enjoy as they=ve testified to. If you look on that brochure and this was the first thing I asked them - I said can I buy a river lot and they said no we don=t have any river lots. I was like geeze cause that=s - that=s where you get your big bucks. They=ve set aside all that property, almost half of the property and the property along the river as common open space and they could=ve just come in and want to make money in this and cut up lots along that and they didn=t do that and that shows the intent of the developer in trying to preserve the environment out there and not just out there getting a buck. The money that=s with the performance bond, I think there=s about $32,000 for this reducing the grade is not relevant, it=s not material to these folks. What is material is having to blast through that rock - who knows how far they have to blast but to blast through that rock when there=s no real benefit gained in this. Uh but the - the point I want to make is they want to come away making sure they=re on good terms with the county and uh and this does comply with the intent of your ordinance - if you looked in section 170-2 and that=s one of the things that you certainly have to look - in 170-2 it sets out the purposes and one of the purposes is to promote environmental quality and if you look at that - that=s that=s one of - one of the purposes of this ordinance is to promote environmental quality and certainly within that it=s to ensure - assure the proper design and installation of roads and utilities. Now I would say to you if - and Rocky said this very eloquently I believe, if this had been a longer section of the road then we probably wouldn=t be here because a longer section of the road at that grade would be a problem and that would not be a proper design of the road for that particular area but what we=re talking about is simply a 200 foot section that because of its length it is not necessary to reduce the grade because you don=t get any benefits from doing that and so we would say that - that 170-2c and 170-2f are harmonized by the granting of the variance cause there is no safety problem in leaving it as it is but you do promote the environment by letting it stay where it is and encouraging folks certainly to use existing logging beds as they did in this case. I do appreciate uh your time and there is a lot of material certainly that was presented to you from the Planning Board minutes uh but I would strongly urge you to look at the subdivision standards only and decide for yourself whether the variance is necessary to create flexibility in order to preserve and protect the natural features in that area. We - we would say it does and you have that power. Thank you very much.@

Angela Beeker - AMadame Chair, if I could offer a couple of comments to the Board when you=re ready.@

Commissioner Gordon - AYes. OK, are there any other closing remarks that need to be made at this time by any of the petitioners? OK.@

Angela Beeker - AYou ready?@

Commissioner Gordon - AYeh.@

Angela Beeker - AUh Mr. Justus has pointed out to you the difference in the language in the subdivision ordinance governing variances and the language in the application. The application sets out tests for the petitioner to meet to demonstrate that he is entitled to the variance um and Mr. Justus is correct that the language does not exactly - it has all the language from the subdivision ordinance in it but it has additional things and I would tell you that it=s for you to interpret that section of the subdivision ordinance, it=s up for you to set the standard based on your interpretation of what the subdivision ordinance says and I will tell you that the language that is in the application is based on the way - it=s based on language from court cases that have interpreted hardship, public health and safety, and meeting the spirit and intent of the ordinance and those are based on constitutional notions of fairness administering things in the same way, treating everyone the same way so I - I would encourage you to read those, determine in your mind whether you feel like that in deed those are applicable to help interpret the language in the subdivision ordinance. It=s up to you to - to set that standard though um.@

Commissioner Gordon - AThe floor is open for Board discussion at this point.@

Commissioner Hawkins - AI - I=ve got a couple of things that uh I=d like to ask for uh which I think=s in our prerogative. I=d like to get from staff or Mr. Justus at least a chronology of the events from uh - I guess I look at the first application that began at - with the Planning Board for phase I or just some chronology of the dates of request for variance, withdraw for variance, plat approvals uh so I can kind of put this thing in some kind of chronology or some kind of sequence of events. Is that something that you can do Karen or?@

Karen Smith - AUh I did a little bit of that in my opening if that would be something you=d want to see in writing.@

Commissioner Hawkins - ASomething like that - just track how the - how we got to where we are would - would be helpful uh and the other thing and I looked at the photos that you presented but to me it=s a little hard in this case to take those out of context and uh I would like to go visit the site myself and get a little bit better look and - because you know for - for 200 feet a difference in 4% grade is pretty hard to see and I mean if you had a pictorial of a 200 foot grade over 200 feet or a 4% change versus a mile with it over a 4% change uh you know your visual perception of it would be I think different just from a geometry standpoint so I=d like to see if we would be able to visit the site and see what=s going on down there and look at this thing in context of where the outcroppings are or where they aren=t or where the road was suppose to go and where it didn=t go and where the logging trails were and where they are now because that=s uh trying to put all that together is almost too hard to do without seeing it uh and then the other thing I=d like to do is have some time to go through all these documents before we reconvene.@

Commissioner Gordon - AAny other comments from the Board? Commissioner Hawkins is indicating a need I think to uh recess this hearing and then reconvene it at a later date uh and for the Board I think it would be appropriate collectively to go out to the site. I have not been there also. Any other thoughts?@

Commissioner Ward - AThe only thing I can say - I can=t penalize uh Oleta Falls for changing. I=ve sat at a bulldozer, I=ve made roads and sometimes you=ve just gotta make common sense judgements at the time and then go back and try to correct it. Time=s money in their profession. They live in the real world where they don=t - and sometimes we live in a world of rules and procedures and then the two=s gotta balance and I guess that=s why - that=s our job here is to balance the two uh but uh to look at the site would be most helpful. My driveway is 24% grade and I ain=t heard anybody say anything about my driveway and most of the Commissioners has been there.@

Commissioner Hawkins - ABut we ain=t been back Don.@ Laughter followed.

Commissioner Ward - AYeh. Can=t get back up it.@

Commissioner Messer - AMarilyn I - I also agree with the statement that Commissioner Hawkins and Mr. Ward. We can go out and look at this site - 4% is really hard to imagine as far as it being you know good or bad but one thing you know if you take the Dana Fire Department and Rocky=s uh statement then I think that you know it=s definitely not a safety issue cause they=ve both - both signed off on that but I=m willing to go out and look at the uh - try to comprehend the difference in the grades.@

Commissioner Ward - AAnd that will be a challenge. I=ll challenge just about anybody unless they do it for a living to get on an 18 and 22 percent grade and see it cause it=s impossible.@

Commissioner Hawkins - ACould - could we look at - coordinate with y=all to set a date to recess to of say the 7^th of May at some time certain because we=ll have to call a special called meeting - well no this would be just a continuation of this meeting.@

Commissioner Gordon - AJust a continuation of this one so - what is the 7^th of May, I don=t have my calendar?@

Commissioner Hawkins - AIt=s a Tuesday.@

Craig Justus - AI think that would be great. I would just ask for the opportunity to reopen the public hearing in case you have any questions that we can answer.@

Commissioner Gordon - AI - I think we=d have to reopen - reopen it@

Commissioner Hawkins - AWe haven=t closed it.@

Angela Beeker - AYeh@

Commissioner Gordon - AWe won=t close it and we would also have to leave the flexibility for additional evidence since Commissioner Hawkins has asked for the chronological timeline which I=m assuming would be another piece of evidence that would have to be added.@

Angela Beeker - AIt would but I would encourage you not to open the door wide open for new - for additional evidence uh that=s something that the Board has specifically requested um you know if you can think of anything else you=d like to see I think that there=s gonna be some testimony that=s gonna be required when you go out there to have explanations of this is what you=re looking at, this is this - this and this - there=s gonna be some testimony that=s gonna be required but I would not open the door wide open for a bunch of new - new evidence.@

Commissioner Gordon - AOK and I would encourage anyone who has any other questions that would require documentation to ask them now so that we can have that on the record.@

Karen Smith - AMadame Chair I do have a model which I did not enter into evidence if that is something that you would want to see - you know even at the next meeting. It=s just a cardboard model showing the difference between an 18% grade and a 22% grade over 100 feet. Is that something?@

Commissioner Hawkins - AI would like to see that at the next meeting.@

Commissioner Gordon - AYes. Yeh, yeh.@

Craig Justus - ACan you do it over 200 feet?@

Karen Smith - AI can - we can construct one over 200 feet if that=s.@

Angela Beeker - AOK@

Commissioner Hawkins - A200 feet would be@

Commissioner Gordon - AYeh, that=ll work - that=s - the earlier the better um. One - one comment I would like to make. Commissioner Ward made some comments uh philosophically on this and perhaps our Attorney might check a little bit on the background since the - evidently the - the text on the variance application refers to court cases and what=s been determined a hardship but as I read the variance part of our subdivision ordinance it doesn=t - isn=t very clear on whether this has to be a hardship financially or a hardship uh in other ways and in my way of thinking a hardship on the land is just as relevant and that=s really what we=re talking about whether or not this would be a hardship on the land so if there is any legal uh support for that interpretation I=d like to know if that=s out there.@

Angela Beeker - AOK@

Commissioner Gordon - AAnything else? OK if - if not then we shall recess this hearing until May the 7^th 9:00 a.m. here at the county office, actually the meeting to begin once we reach the property.@

Commissioner Ward - AWell let me ask a question when Mr. Moyer gets back for a point of order and you know we set I feel like as a judge here basically.@

Angela Beeker - AYou do@

Commissioner Ward - AAnd correct me we=ve got a room full of Attorneys right now but I really would want to get the information because the point of discovery the two Attorneys on the other side exchanged evidence and sometimes the judge has to rule on it and he has to rule on the evidence. I can=t see why we can=t get all the facts in front of us before we make a decision like this. I just - maybe I live in the common sense world and not in the law world but if you=re gonna make a decision like this you just need all the information in front of you.@

Angela Beeker - AUh probably@

Commissioner Ward - ATo make a good decision@

Angela Beeker - AWe probably need to look at your Rules of Procedure. We right now don=t have discovery provisions in there to provide for an exchange of information before the hearing which you do have in court. Of course when you get before a judge the judge doesn=t get anything in advance either usually, sometimes but normally@

Commissioner Ward - AHe has to rule on discovery.@

Angela Beeker - AWell@

Commissioner Gordon - AHe can - at his discretion though he can delay ruling.@

Angela Beeker - AHe delay - that=s typically what happens, the judge will delay ruling@

Commissioner Ward - AIf I=m gonna rule I want to see it.@

Angela Beeker - ASo there=s nothing we can do about that right now but you certainly can look at your Rules of Procedure in the future, you sure can@ Commissioner Ward said something while Angela Beeker was talking but I=m not sure what.

Commissioner Gordon - AWe=ll swap chairs and get back on the regular agenda.@

Angela Beeker - ADid y=all vote on that recessing, I=m sorry?@

Commissioner Gordon - AWell do we need to vote on a recess?@

Angela Beeker - AYes.@

Commissioner Gordon - AOK@

Angela Beeker - AMake a motion to do it.@

Commissioner Gordon - AOK, I move that we recess the meeting until May 7^th at 9:00 at Oleta Falls.@

A unanimous Aaye@ followed.

Commissioner Gordon - AThank you.@

Following some discussion it was decided to meet at the entrance gate at Oleta Falls.

PROPOSED STATE BUDGET CUTS / COUNTY DEPARTMENTS add-on by Commissioner Ward

Chairman Moyer asked Mr. Nicholson to comment on the proposed budget cuts and answer any questions from the Commissioners.

Mr. Ward wished to address a specific item. Commissioner Ward - AOn March 6^th you gave us some budget actions that you would like to take because of the State shortfall and at that time we request a meeting, basically a special called meeting to discuss the cuts cause my concerns then was emergency - some of the emergency services being cut. I think that Commissioner Messer had some concerns about the drug money leaving the Sheriff=s Department and Commissioner Moyer as well had some concerns so we set a public meeting - special called meeting for April 4^th which we discussed the courthouse, some philosophies on the Carolina Apparel Building and in all of the excitement we never even acted or even brought forth the budget actions of the State, the cut of the $600,000 which I guess you assume by the Manager that we accepted your recommendations. I didn=t speak up and I just - I felt like we needed to talk about it. I still emphasize that taking money from - $25,000 from Emergency Medical Services basically puts them at a shortfall by looking at their budget - on month to month and year to year they are already over on some of their line items and I think we=re just going to create a hard situation or maybe even a double up in the up-coming budget.@

David Nicholson - AOK, let me uh@

David Nicholson - AI would tell you . . . but let me tell talk to just Mr. Messer=s question first. I would tell you there is relatively quiet on the western front. There=s just not a lot of - a lot of discussion going on. I think the general - members of the General Assembly are positioning themselves, the Governor is positioning himself and even discussion I think I saw in I believe today=s paper about some of the tobacco settlement fund money finally being released. I believe I put a note in some - in your box from the Commissioners Association with the proposed changes that they would make to the State Budget. That was done at the request of the Governor and his staff of what changes would they make in the State=s Budget and those were presented. Using tobacco money was one of those - those discussions. I did have the opportunity several weeks ago to actually meet with the Executive Director and two of his staff persons from the North Carolina Association of County Commissioners and uh - and it=s real interesting but he said in this case, unlike most years, they are looking forward to the General Assembly coming back into session because they feel like that they have made certain deals for lack of a better term with the members of the General Assembly, particularly with the leadership of the General Assembly and they think that in their conversations with that leadership is that we will get a pretty fair shake out of that leadership. Uh there is still the discussion of the possibility as we talked about earlier today about that sales tax coming on a little quicker to - to local governments and part of that has to do with there is discussion about an additional half cent sales tax for the state being discussed right now to help balance their budget uh so I guess what I would tell you is uh that=s about what I know right now. I=m not getting a whole lot more information than that. . . There is certainly again a strong feeling across the state over these reimbursements and real concern - I mean Managers are back and forth on how to handle the reimbursements - I mean there=s a lot of discussion. I think you saw in the paper where the Fletcher Manager is proposing a tax increase to the citizens of Fletcher because of the fact that he doesn=t feel like he has a way within his budget to make up those - those differences uh and uh so I think there=s just a lot of underground discussions going on but I - until - unfortunately the General Assembly doesn=t meet til May and unfortunately they may wait - they may meet til December - you know the short session - there=s no telling so. That=s about what I know Mr. Messer which isn=t a whole lot.@

Chairman Moyer - AAs you know the County Commissioners are having a session April 23 but based on what David said and what I=m hearing, I=m not sure they=re gonna have any new information. At least we can talk about our strategies to what we=re gonna do.@

Commissioner Hawkins - AWell let me - let me ask this because I - I think when we went through this there were several of these items that were gonna generate money anyway - by that I mean - for example under economic development no transfer to Raflatac =cause they didn=t get their paperwork in so I mean that money=s gonna be there and there were some other specific over there that either came in under budget or for whatever reason and it would seem to me that uh the appropriate thing to do would be to - to have the County Manager tally those givens up if you will like Raflatac is@

Chairman Moyer - AYou know for sure@

Commissioner Hawkins - AYeh, that the money=s gonna be there and then - and then I think the Board ought to look at their capital reserve money that they have set aside for the historic courthouse to look at the budget - the shortfall. I don=t think we should penalize all these departments when you get down to actually making cuts and still - and still be hanging on to money over in a capital reserve fund and uh I think that - that we should take action to move that money out and use it to supplement the departments that are - that are feeling this shortage before we make actual cuts in departments. I - that=s just my thoughts on it. I can=t justify cutting departments and still having that amount of money sitting aside in a - in a reserve fund.@

David Nicholson then reviewed some items with the Board from his memo dated March 6 entitled ABudget Actions@:

#7. EMS - reduction of $25,000, $14,000 of which is due to eliminating the Asst. Director position. Mr. Layne proposed some line item cuts to Mr. Nicholson.

#10. Health Dept. - the cuts came from Mr. Bridges. Mr. Nicholson wasn=t sure whether the Board of Health had discussed the changes or not.

#14. Library - Mr. Nicholson stated that if we=re faced with substantial loss of money this is an area that he will have to look at and make a recommendation to the Board. In working with Mr. Snyder they felt the best thing would be to not fill open positions with full-time permanent employees but rather with temporary positions. Chairman Moyer stated that the Library Board has discussed this budget and they certainly recognize the county=s and the state=s financial situation and are willing to try to deal with this for the remainder of the year.

#19. Sheriff=s Department - Drug Enforcement money. Mr. Nicholson stated that he always puts some money in the budget but at this point in time because of the budget crisis, the Sheriff intends to use the money first from the Federal and State Court System for drug buys. Due to what he has in that account he does not feel it necessary to use the county money.

Chairman Moyer felt that we could get by for the remainder of this year with these cuts and without going into our reserves. He felt comfortable with where we are for this year but as we approach the budget for next year the Board will really have to look at what further cuts to take.

Mr. Nicholson stated that he needed to assure himself and the Board that we were going to end up in the Ablack@ at the end of this year. That is the approach he took with this. He worked with the Department Heads with the goal of bringing this current budget in the black. He further stated that it was staff=s goal to present to the Board the proposed County Manager=s Budget at the next regularly scheduled Commissioners= Meeting.

Action

Chairman Moyer made the motion that the Board approve the approach the County Manager has taken with these recommended cuts and continue this for the remainder of this fiscal year. A vote was taken and the motion passed four to one with Commissioner Hawkins voting nay.

The Board resumed discussions about WCCA/Transportation from this morning. Javonni Burchett from WCCA had requested $10,000 to transport people to work with some of it to go for daycare. Chairman Moyer made the motion to fund $10,000 to WCCA for the employment transportation as requested through the end of this year. All voted in favor and the motion carried.

IMPORTANT DATES

Chairman Moyer stated a need to set a date for the NCDOT Secondary Road Public Hearing. Chairman Moyer made the motion to set that public hearing for May 14 at 2:00 p.m. All voted in favor and the motion carried.

Commissioner Hawkins reminded the Board that they did have a Joint Facilities Board Meeting and there was quite a bit of significant information that transpired there as well as additional funding this Board will need to look at. He is trying to expedite getting the minutes from that meeting so everyone will have a chance to look at those.

CLOSED SESSION