MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON JANUARY 15, 2003

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 Grady Hawkins, Vice-Chairman Larry Young, Commissioner Bill Moyer, Commissioner Charlie Messer, Commissioner Shannon Baldwin, County Manager David E. Nicholson, County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.

Also present were: Planning Director Karen C. Smith, Budget and Management Director Selena Coffey, Finance Director J. Carey McLelland, Fire Marshal Rocky Hyder, Planner Autumn Radcliff, Public Information Officer Chris S. Coulson, and Deputy Clerk to the Board/Volunteer Coordinator Amy Brantley.

CALL TO ORDER/WELCOME

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

PLEDGE OF ALLEGIANCE

Chairman Hawkins lead the Pledge of Allegiance to the American Flag.

INVOCATION

Dr. Tom Blair, from Trinity Presbyterian Church gave the invocation.

DISCUSSION/ADJUSTMENT OF AGENDA

Chairman Hawkins added one item to Update on Pending Issues as #2 - AHuman Services Building@.

Chairman Hawkins moved that the agenda be approved as presented. All voted in favor and the motion carried.

CONSENT AGENDA

Chairman Hawkins pulled Item AG@ - Waterline and Sewerline Extension(s).

Angela Beeker stated that she had a clarification on Item AF@ - Extension of time for Printpack, Inc. Mr. Keith Love, plant manager, had contacted Ms. Beeker to clarify that the cover sheet states the equipment is already in place, but should say the equipment will be in place by the 20^th. No change was required to the addendum.

Chairman Hawkins spoke to Item AG@ - Waterline and Sewerline Extension(s). He reminded the Board that frequently when these extension requests are received, the projects do not have adequate fire hydrant location or spacing. The County had made note of this on previous extension requests sent back to the City, but it was unknown whether the City added additional hydrants to those extensions. He wished to make note on this particular request that the County had a particular concern on the installation of the fire hydrants, and ask for a response from the City on how previous concerns had been addressed. Mr. Nicholson will look into how those requests have been handled by the City.

Chairman Hawkins moved that the consent agenda be approved as amended with the clarification from Ms. Beeker on Item AF@ and the addition of a comment on the waterline extension. All voted in favor and the motion carried.

The CONSENT AGENDA included the following:

Tax Collector=s Report

[Note from the Clerk: The Tax Collector's report was not included in the materials presented to the Board for approval. Only the cover page was included.]

Tax Releases

The Tax Assessor had submitted a list of 85 tax release requests for the Board=s approval.

Tax Refunds

The Tax Assessor had submitted a list of 18 tax refund requests for the Board=s approval.

Financial Report - November 2002

Cash Balance Report - November 2003

Non-departmental expense includes the annual property/liability and worker=s compensation insurance premiums paid to the NCACC Risk Management Pools. Those costs will be allocated out to individual departments on a pro-rata share basis prior to fiscal year-end. The report had been provided for the Board=s review and consent approval.

Henderson County Public Schools Financial Report - November 2002

The report had been provided for the Board=s review and consent approval.

Extension of time for Printpack, Inc.

In December of 2001, the County entered into an incentives agreement with Printpack, Inc. to increase the taxable capital investment in Henderson County. The Agreement requires that Printpack make a capital investment through a building expansion and purchase of capital equipment in the amount of $8.5 million. In exchange, the County agreed to pay $22,000 in incentives to be paid over a 3-year period. The Agreement requires that Printpack complete its capital investment no later than February 28, 2003. It also requires that they certify that the capital investment is complete and paid for by March 31, 2003.

The equipment will be in place by the 20^th, and their purchase agreement has a deadline for making the equipment operational by March 1, 2003; however, they, as a matter of practice, typically withhold a retainage on new equipment to make sure that the equipment operates as it should prior to their paying 100% of the price. They have therefore requested that the dates be extended. They would like the deadline for completion to be extended to April 30, 2003, and the date for certification to be extended to May 31, 2003.

An addendum to the incentives agreement prepared by the County Attorney was included for the Board=s consideration. It was very straightforward, and simply extended the deadlines as requested.

Waterline and Sewerline Extension(s)

The City of Hendersonville had requested any County comments on proposed waterline and sewerline extensions. Copies of the City=s requests and the County=s review sheets were presented for Board review.

The Project Name of the proposed extensions was:

C Sunrise Ridge Subdivision

As discussed earlier in the meeting, the County will express a particular concern on the installation of the fire hydrants, and will ask for a response from the City on how previous concerns had been addressed.

NOMINATIONS

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

1. Nursing/Adult Care Home Community Advisory Committee - 10 vac.

Chairman Hawkins nominated Jean Justus to Position #17. Chairman Hawkins made the motion to suspend the rules and appoint Ms. Justus to Position #17. All voted in favor and the motion carried.

2. Fire & Rescue Advisory Committee - 1 vac.

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

3. Governmental Financing Corporation - 3 vac.

Mr. Nicholson explained that any time Henderson County issues Certificates of Participation to do long term financing projects, a financing corporation such as this must be used. The money borrowed flows through the Financing Corporation then on to Henderson County. Originally there were three members of the Corporation, however about a year ago the membership was increased to five.

Chairman Hawkins nominated Fielding Lucas to fill one of the vacancies. There was discussion over the necessary number of members, and whether it made more sense for a Commissioner to fill a position. It was the consensus of the Board to decrease the membership back to three members. Chairman Hawkins withdrew his nomination, and stated that he would serve on the Board. Commissioner Moyer made the motion to have Chairman Hawkins serve on the Board. All voted in favor and the motion carried.

4. Henderson County Comprehensive Plan Advisory Committee - 1 vac.

Commissioner Young nominated Larry Blair to serve on that committee. Chairman Hawkins made the motion to accept Mr. Blair by acclamation. All voted in favor and the motion carried.

Commissioner Moyer reminded the Board that Bill Blalock had been serving as the Chairman of that Committee, as appointed by the Board of Commissioners. This appointment will be discussed at the next meeting.

5. Juvenile Crime Prevention Council - 1 vac.

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

ORDINANCE TO REGULATE FIRING OF WEAPONS

Angela Beeker reminded the Board that at the mid-October meeting, a group of citizens spoke to some concerns over gun shots being fired in the neighborhood that resulted in bullet holes on their property. The Board was presented with some ordinances from other counties, and requested that Ms. Beeker draft an ordinance based on those examples.

Ms. Beeker had worked with Mose Highsmith, Sheriff=s Staff Attorney, and they had put together an ordinance based on their discussions and Mr. Highsmith=s discussions with other jurisdictions that have similar ordinances in place. Primarily, the ordinance would be enforced by criminal penalties. It was organized to fit into the County Code, and proposed to add a Part 2 to Chapter 196 on the discharging of firearms. It would be enacted pursuant to NCGS 153A-129, which specifically states that the Board may regulate the discharge of firearms, but cannot prohibit anything the game laws allow.

She noted that there would be three basic restrictions on the discharge of firearms:

1. A person cannot discharge a firearm within 300 feet of a building designed to be occupied or used by humans without the building owners permission. That permission would have to be in writing.

2. It is unlawful for any person to discharge a firearm carelessly or heedlessly in wanton disregard for the safety of others.

3. It is unlawful for any person to discharge a firearm on the property of another without their permission.

There followed some discussion on the statement Aa building designed to be occupied or used by humans@, with the concern being that there might be a future clarification and interpretation problem. Ms. Beeker stated that she would clarify that statement and add some different language.

The ordinance would not prohibit discharging a firearm when used:

1. In lawful defense of a person=s property

2. To take birds or animals pursuant to the game laws

3. Pursuant to lawful directions of law enforcement officers

4. By persons lawfully engaged in pest control of the taking of dangerous animals

5. By members of the armed forces acting in the line of duty

6. At historical ceremonial or commemoration functions held for such purpose, provided in no event shall live ammunition be used or discharged.

There was some discussion among the Board regarding how firing ranges would be affected by the ordinance. Chairman Hawkins suggested that some language be added that would not prohibit firing a weapon within 300 feet of a structure if there was sufficient land or a backstop to prevent the projectile from leaving the property. Ms. Beeker expressed concern that such wording would make the ordinance harder to enforce because in many instance it would be a judgement call as to whether adequate precautions had been taken. There followed much discussion on the various intricacies of the language to be used in the ordinance, especially in regards to firing ranges.

Commissioner Messer made the motion to accept the ordinance to regulate the firing of weapons in Henderson County as discussed. Commissioner Moyer questioned whether that motion would include the clarification of structures used by humans? Chairman Hawkins stated that he hoped the Board would open the topic up for public discussion at a future meeting prior to adoption. He felt it would be appropriate for Commissioner Messer to withdraw his motion, have staff do some research and bring it back. Commissioner Messer agreed to withdraw his motion. It was the consensus of the Board to schedule some time for public comment on the ordinance, and have it back on the agenda following those comment sessions.

QUARTERLY BUDGET REPORT

Selena Coffey presented the AFY 2003 Budget Report@ to the Board for their review. That report is attached hereto and incorporated as a part of the minutes. Ms. Coffey discussed the report in detail, and Mr. Nicholson spoke to the intricacies of sales taxes and ad valorem taxes.

Commissioner Baldwin questioned the current level of the fund balance. Mr. Nicholson stated that going into the year, the county had 13%. With what had been appropriated, without anything being returned, the county was now between 10% and 10.5% at year end. He explained that the Local Government Commission recommends the county have 8%, or half of what other similar size counties have in unrestricted fund balance.

Commissioner Young questioned what percent of the budget consisted of Medicaid. Selena Coffey answered that it was $3.89 million dollars, of a $73 million dollar budget. Mr. Nicholson pointed out that North Carolina is one of only seven states in the U.S. where the counties have any responsibility for Medicaid. He also noted that if a county does not pay their required portion, by law the state can withhold it from their sales tax payment.

BOARD AND COMMITTEE REPRESENTATION

At their January 6, 2003 meeting, the Board made preliminary Commissioner assignments to several of the Boards and Committees. A number of the Boards which previously had a Commissioner representative, do not actually require such representation. The Board requested that staff bring back recommendations regarding what action, if any, would be necessary for those Boards and Committees on which a Commissioner will no longer serve.

Staff had compiled the following list of the Committees affected, and recommendations on possible alternatives. Commissioners served on the following Boards as staff contacts or representatives, and did not fill a position. Therefore no action was required:

C Agriculture Advisory Committee

C Employee Suggestion Program

C Solid Waste Advisory Committee

On the following Boards, a Commissioner had filled a position which will become vacant. The Board will need to make appointments to fill those vacated positions for the following:

C Alliance for Human Services

C Transportation Advisory Committee

C Cane Creek Advisory Committee

C Mud Creek District Advisory Council

Commissioner Baldwin felt that unless a Commissioner had someone which they wished to nominate, those positions should be left vacant. Commissioner Messer stated that he might be able to serve on the Cane Creek Advisory Committee, schedule allowing. David Nicholson stated that Committee is now meeting only as needed, and hasn=t had a meeting for several months.

Ms. Beeker stated that the Mud Creek District Advisory Council is required to have a County Commissioner member per the contract entered into with the City of Hendersonville. Chairman Hawkins asked the Board to consider whether they would care to serve on that Council, and stated that they find a representative prior to their next meeting.

Amy Brantley noted that the Alliance Human Services wished to have a County representative on their Board, regardless of whether the member was a Commissioner. David Nicholson stated that Selena Coffey currently served on that Board, and would be willing to continue her work with that group. It was the consensus of the Board to have Ms. Coffey serve as the County representative on that Board.

The following Committees had a Commissioner representative as requested in the committee=s charter. A change should be made to the Charter of the following to withdraw that requirement:

C Transportation Advisory Committee

C Environmental Advisory Committee

It was the consensus of the Board to make the changes necessary to no longer require a Commissioner to serve on those two committees. Commissioner Moyer did state that he felt it important that the Environmental Advisory Committee continue to have a Commissioner representative.

BOARD AND COMMITTEE REPORTS

At their January 6, 2003 meeting, the Board requested information regarding report requirements for Boards and Committees. The following chart denotes those Boards that have such a requirement, and the frequency with which those reports are due.

Board/Committee Report Required

Agriculture Advisory Board Annually

Apple Country Greenway Commission Annually - on or before February 1st

Cane Creek Water & Sewer District Advisory Committee Annually

Child Fatality Prevention Team Annually

Community Child Protection Team Annually

EMS Quality Management Committee As needed or requested

Environmental Advisory Committee Annually

Local Emergency Planning Committee Annually - on or before February 1st

Nursing/Adult Care Home CAC Annually

Recreation Advisory Board Monthly

Transportation Advisory Committee Annually

Travel and Tourism Committee Quarterly and Annually

David Nicholson requested that Ms. Brantley contact those Boards to facilitate the receipt of

those reports. He stated that they could be placed on the Consent Agenda for review.

UPDATE ON PENDING ISSUES

Historic Courthouse Committee Charter

David Nicholson presented the Board a Charter for the Historic Courthouse Committee. Chairman Hawkins noted that the Charter called for the life of the Committee to be about six months, that they must operate under the North Carolina Open Meeting Laws, and should submit a report to the Board quarterly.

Commissioner Moyer questioned the use of the term Ato review@ under the charge to the committee. He felt that the Board wanted them to make specific recommendation rather than just review information. It was the consensus of the Board to change that wording to Aprovide recommendations@.

Chairman Hawkins noted the following groups identified to make up the committee:

C City of Hendersonville

C Travel & Tourism

C Chamber of Commerce

C Business and Merchants Association

C Genealogical and Historical Society

C Downtown Hendersonville

C Historic Preservation Society

C Downtown Beautification Committee

C News Media

C Members of Public

Commissioner Moyer stated he felt Veteran=s organizations have an interest in the building, and that they should have a representative on the Committee. It was the consensus to add a member

form a Veteran=s organization. There was some discussion regarding contacting those various groups to request assistance in finding people interested in serving on the Committee.

It was the consensus of the Board to establish the Historic Courthouse Committee under the Charter as indicated, and ask staff to correspond with the groups listed and ask for assistance with identifying potential members.

Human Services Building

Chairman Hawkins reminded the Board that there had been an offer from BB&T on a financing package for the plans as they currently stand. Additionally, the Board had looked at some requests for bids, along with the original financing package. Subsequent to that, when the Board requested that Mr. Nicholson go back to BB&T to explore a financing plan, there had been some additional charges added to the original package.

At their retreat, the Board made plans to have a more detailed discussion on the Human Services Building at their February 3^rd meeting. To have a full discussion at that meeting, Chairman Hawkins thought the County Manager should inquire into what types of financing are now available to go with the bid packages.

David Nicholson stated that there were several different ways to do the financing on the project. Because of the previous time constraints, he explored doing an installment contract financing which was where the additional fees were introduced. He explained that he would like to go back and talk to BB&T, and devise an appropriate calendar if the Board wished to proceed with a COPS issue. He reminded the Board that instead of using a professional estimator, the county had a construction firm provide a construction estimate for the project. With those numbers, and looking at the COPS issue and the time frame associated, Mr. Nicholson felt he could bring back some additional information at the next meeting.

Chairman Hawkins reminded the Board that he had distributed a memo concerning another piece of land that might be available as a potential site. Commissioner Moyer stated that there are other options, and these options should be explored. One example is the Blue Ridge Community College (BRCC). BRCC has offered the County the choice of a site on which a Human Services Building could be constructed. There would be no cost for the land, though there would be some site preparation costs. He felt that the existing building should be sold, and other sites investigated. There followed much discussion on the pros and cons of the BRCC site. The Board asked David Nicholson to correspond with BRCC on the various possibilities, and report back to the Board on February 3^rd.

INFORMAL PUBLIC COMMENTS

1. Bruce Gosnell - Mr. Gosnell was not present to speak when called.

2. Eva Ritchey - Ms. Ritchey spoke to the Board as the coordinator of Million-Mom-March, North Carolinians Against Gun Violence. This organization is very interested in common sense gun laws. She wished to go on record as opposing the 300 foot limit as too close. The types of guns available today make this distance not appropriate. She stated that she did not feel the Board should look at a firearms ordinance apart from the noise ordinance. She also stated that she felt the NRA should be contacted for their opinions on the ordinance.

3. Frank Holden - Mr. Holden was not present to speak when called.

4. Leon Allison - Mr. Allison stated that he felt people had the right to own and fire weapons, but did not have the right to discharge that weapon in the direction of a home, a building or a barn. He did not have a problem with people firing weapons toward their own house as close as they wished. He felt that the ordinance had to be written in a way to give the police force in the County the authority to make an informed decision, including some rules and regulations on which to base those decisions.

He also spoke to the Carolina Apparel Building. He stated that he had noticed as a Planning Board member, that 99.9% of rezoning applications deal with traffic situations. He stated that locating the Health Department on Spartanburg Highway would not change the traffic pattern. However he did not feel that Allen Road would be a suitable site.

SANDBURG HOME - BOUNDARY EXPANSION

The National Park Service had developed a Management Plan for the Carl Sandburg Home Historic Site. Included within that Plan was a proposed boundary expansion for the Site. Should the Board decide to support that boundary expansion, a draft Resolution was presented for their consideration.

Connie Backlund, Site Superintendent, provided the Board some background on the planning process. She explained that they are a unit of the National Park Service, established by congress in 1968. They had been under a Master Plan for the last 35 years, which has now been accomplished and completed. Over the last four years, they had engaged the community in another long range planning process, and had crafted a General Management Plan. This plan will guide the future of the site for at least 20 years.

The issues being dealt with in the long range plan were:

C The growing number of visitors, especially those from the immediate area.

C A growing need for added parking.

C The changing context of the park, including areas on the park boundaries.

Over the past year, the National Park Service had worked very closely with the Village of Flat Rock to find common ground in what is best for the community at large with regards to this expansion. She summarized the important points of the land portion of the plan as (1) always willing seller and willing buyer, and (2) the land is all to the west of Hwy. 25 and to the south of Little River Road. She continued her discussion, elaborating on the various uses for the expansion, and the owners of the land where they might wish to expand. One of those land owners is the Conservation Trust for North Carolina, who are holding 22 acres to be purchased by the Site by November, 2003.

Commissioner Moyer made the motion that the Board adopt the Resolution as presented. All voted in favor and the motion carried.

HOME PROGRAM APPLICATIONS

Selena Coffey provided a brief overview of the HOME Program. She explained that it is federal money that comes from the Housing Urban Development Division of the Federal Government. Henderson County is a member of the Asheville Regional Housing Consortium, and this year the Consortium estimates that it will get $1.4 million dollars from HOME Program funds. 30% of that is set aside for Community Housing Development Organizations (CHDO=s), and administration of the program. The remaining 70% goes to the Consortium, with is divided out to the member governments of the Consortium. Therefore, Henderson County=s HOME Program allocation is an established allocation that Henderson County is responsible for using within the county. The money received is for use in the unincorporated parts of the county, and is based on population. Occasionally, funds go back to the Consortium and are used by other agencies. To compete for those funds, agencies must have a very good time line of how they are going to spend that money.

Habitat for Humanity requested $96,945.75 for Phase I of the Highlander Woods Development. Highlander Woods is a 16 family development on South Highlander Drive. These funds being requested for this year, are gap funding requests to cover the remaining land cost of $33,360, and the remaining infrastructure costs for road paving of $63,585.

Housing Assistance Corporation requested $150,000 for Downpayment Assistance for the Village at King Creek project, as well as any other downpayment need. HOME funds in the amount of $165,000 were awarded for this project during the 2002 program year.

Chairman Hawkins made the motion that both projects be approved, and that Ms. Coffey be directed to come back with as much money at the Consortium level as possible. All voted in favor and the motion carried.

Chairman Hawkins called a five minute technical recess.

QUASI-JUDICIAL PUBLIC HEARING - Application for a Special Use Permit for Expansion to a Preexisting Mining and Extraction Operation. Application #SP-02-01 by Junius Grimes

Chairman Hawkins made the motion for the Board to go into a Quasi-judicial proceeding. All voted in favor and the motion carried.

Chairman Hawkins - AJust a couple of comments, uh, a quasi-judicial proceeding is being held today on the following petition: Application for a Special Use Permit for Expansion to a Preexisting Mining and Extraction Operation, Application #SP-02-01 by Mr. Grimes. A quasi-judicial proceeding, much like a court proceeding, is a proceeding in which one's individual's rights are being determined. The proceedings 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 proceedings. Just as a general overview, all persons who speak and participa, 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. Then after the petitioner is finished, anyone else who has expressed a desire to be a party and, and, uh, 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. Uh, Ms. Beeker do you have any special instructions to the Board, uh, prior to, uh, identifying the parties to the proceedings?@

Angela Beeker - AYes I do thank you Mr. Chairman. Um, I just want to remind the Board members and inform the new Board members, um, that in a quasi-judicial proceeding an applicant is entitled to know everything that is being considered when the Board makes the decision. So, therefore, um, it is appropriate that if you have been to the site or have spoken with the applicant or gained any information outside of the hearing, that you would reveal that so that the applicant could know and have a chance maybe to address anything that, um, you might be relying on that is not formally part of the proceeding.@

Chairman Hawkins - AEveryone understand that? Okay. At this time we=ll identify the, uh, parties to the proceeding. The Board acknowledges the petitioner Mr. Grimes, and the Planning Staff as parties to the proceedings. Uh, 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 the proceeding?@

William Lapsley - AMr. Chairman, uh, I=m representing the applicant.@

David Nicholson - ATo the, to the mic please.@

Chairman Hawkins - AIf you would come on up Mr. Lapsley and we=ll get you sworn, uh, if it=s the pleasure of the Board if they=re, uh. Is there anyone else? Would you please come forward sir and state your name.@

Richard Anderson - AUh, Richard Anderson. We own the property directly in front of the quarry.@

Chairman Hawkins - AOkay. Anybody have any objections to him being a part of the proceedings, obviously not.@

David Nicholson - AYou need to go over there too.@

Chairman Hawkins - AAny, uh, I see Karen and, uh, does any of you have witnesses you plan to call that will need to be sworn also.@

Karen Smith - AThis is Daniel Gurley our Zoning Administrator, he=ll be doing the primary presentation.@

Chairman Hawkins - AOkay. Anyone else? Witnesses? Ms. Corn if you would, uh.@

Angela Beeker - AUm. Before you do, if each of you could make sure the Clerk has your address, for purposes of the order.@

Elizabeth Corn - AEach of you must touch the Bible with your left hand, raise your right hand. Do you swear or affirm that the testimony that you shall give to the Board of County Commissioners shall be the truth, the whole truth and nothing but the truth so help you God?@

In unison - AI do.@

Chairman Hawkins - AIf you=d take just a minute and let Ms. Corn get your mailing address, or sometime get that to her. We=ll begin our proceeding with evidence. Uh, we=ll start out with a staff overview. Uh, Karen are you gonna give that or.@

Karen Smith - AMr. Gurley=s gonna...@

Chairman Hawkins - AMr. Gurley.@

Dan Gurley - AOkay good morning Board. Um, the applicant Mr. Junius Grimes is applying for a special use permit, um, through his agent today Mr. William Lapsley, a local land surveyor, um, for an expansion to a pre-existing mining and extraction operation. Um, this is being done under Section 200-32.1.F(1)(C) of the Henderson County Zoning Ordinance for the property known as Hooper=s Creek Quarry. Um, the expanded area of operation is approximately .72 acres, as indicated on the, uh, site plan given to us by, by Mr. Lapsley. Um, and basically this expansion will allow the owners to relocate a sediment basin and enlarge it=s waste fill site. Um, the, this is the first special use permit that the County has received regarding regulated uses in the Open Use District. Um, as a rel, as a related issue the applicant is also requesting a variance, um, from the specific site standard, um, the fencing requirement for, um, mining and extraction operations. The quarry expansion is proposed an a property that is owned by Hooper Creek Quarry, LLC, um, it=s located off of Hoopers Creek Road. Um, the subject is located approximately 635 feet west of the intersection of Hoopers Creek Road and Jackson Road. The majority of the subject property is within the County=s jurisdiction. Um, a small portion including the entrance and the section of the access road, um, falls within Fletcher=s extraterritorial jurisdiction. Uh, the subject property contains approximately 32.5 acres. Five acres are currently governed by state and federal mining permits. The proposed expansion requires a modification to the applicant=s state mining permit, and County staff has felt since then, that modif, since that amendment is being necessary, a, um, special use permit would be necessary as well. Um, we=ve attached a copy of the application of the state mining permit to the packets that you received. Um, the details of the operation are discussed in the attachment, um, entitled Hoopers Creek Quarry Special Use Permit, Supplemental, um, information, and that=s attachment #3. Um, a special use permit is required when there=s an expansion to one of the uses that=s listed in the Zoning Ordinance under, uh, 200-32.1(1)(F). Um, it=s County staff=s interpretation that with the relocation of the sediment basin and the expansion of the waste fill area, the operation is required to obtain a special use permit. Um, staff has also interpreted this to mean that only the expansion area of the pre-existing non-conforming use can be regulated under the Henderson County Zoning Ordinance. So anything that was existing prior to May 16, 2001 would not be able to be regulated. Just the expansion area being done today. Um, therefore the area containing the new sediment basin and the enlargement to the waste fill area is the only portion of the operation that can be considered under the ordinance. Um, that being the case you can see why some of the general and specific site standards didn=t really m, or weren=t included in the review, just simply because of it being a sediment basin and a waste fill area. Not the actually mining uses itself. Um, definitions in the Open Use District, uh, 200-32.1 and Section 200-7 apply to this application. Attachment #8 that was in your packet includes some excerpts from the Zoning Ordinance that are pertinent to this issue. Um, as stated before the applicant is requesting a variance, um, from the minimum site specific standard requiring a secured fencing around the expansion area. As stated before, um, the expansion is just the expansion area that we=re looking at and can be governed under the ordinance now. Um, so the fencing would be required around the, um, new sediment basin and the waste fill site. Um, lets see, Sections 200-56 and 200-70 of the Zoning Ordinance require the Board of Commissioners to refer applications for Special Use Permits to the Planning Board for review and recommendation. Uh, the Board of Commissioners referred this application to the Planning Board, um, at it=s November 20^th meeting, um, and the Planning Board reviewed and made it=s recommendations during it=s December 17^th meeting. Um, with previous special use permits this, um, as with previous special use permits the recommendation will be entered into evidence later during this hearing. Um, in accordance with 200-56(D) and 200-70(A)(2) of the Zoning Ordinance the Board of Commissioners must make findings of fact regarding compliance with the ordinance in order to grant a special use permit and may impose conditions. Um, to ensure that a proposed use will meet the requirements of the Zoning Ordinance, um, Section 200-56(D) lists the general site standards that apply to all special uses and 200-70(A)(6), um, require that, uh, the Board of Commissioners demonstrate that the proposed use complies with the specific requirements for the use, um, if applicable. The Board of Commissioners also will be hearing the variance today, um, the, there=s a list of things that are set up by general statute that m, um, must be made affirmative through a finding of fact before a variance can be issued. Um, those things are listed not only in your, um, excerpts, but also, um, in the last paragraph of your, of staff=s memo. Um, the public hearing has been, um, advertised in accordance with the Henderson County Zoning Ordinance and under the, uh, Board of Commissioners rules of procedure for quasi-judicial proceedings. Uh, notices of the hearing were published in the December 30^th, January 8^th and January 13^th editions of the Times-News. On December 31^st the Planning Department posted notice at the project site to advertise the hearing, and on January 2^nd the Planning Department sent notices to the public of the public hearing via certified mail to the applicant and abutters of the subject property. And if there are any questions regarding, introduction.@

Chairman Hawkins - AUh, let me ask you just a couple to, to be sure I=m, uh, straight. You, you ask, or you, uh, mention the supplemental information and, in the supplemental information there was uh, quite a few other areas that indicated a waiver would be required however, uh, you, I think just indicated one specific site standard, the fencing requirement. Uh, are the other, uh, other ones that you listed there, uh, not applicable in as much as they=re, uh, not on the site that=s being, uh, for the special use permit?@

Daniel Gurley - AI think the other, that was in the supplemental, was the, um, the new travelway that=s being constructed.@

Chairman Hawkins - AYeah.@

Daniel Gurley - AUm, we determined that, um, technically they=re not constructing a travelway. It=s going to be an earthen dam. Um, with a, just basically access for maintenance that=d be used once, you know, every year or two for maintenance to the dam. It=s not technically what we would consider to be a travelway, and thusly wouldn=t have to, to meet that, um, I think it=s a 45 foot requirement. Or 45 foot travelway, or 30 foot travelway.@

Chairman Hawkins - ASo you really just, uh, the Board=s really looking for two things. One=s a special use permit and one is, uh, specific site standard, uh, fencing variance.@

Dan Gurley - ACorrect.@

Chairman Hawkins - AOkay.@

Dan Gurley - ACorrect.@

Chairman Hawkins - AI, that was what I wanted to do. Anybody have any questions for Mr. Gurley?@

Commissioner Baldwin - AI=ve got a question. You, uh, uh, it was your interpretation that this is a non-conforming use? Existing non-conforming use?@

Dan Gurley - AIt=s existing non-conforming under the current ordinance, yes.@

Commissioner Baldwin - AThat was your interpretation?@

Dan Gurley - AYes.@

Commissioner Baldwin - ACan you read the definition of non-conforming use?@

Dan Gurley - AYes.@

Commissioner Baldwin - APublicly.@

Dan Gurley - ASorry, I wasn=t prepared for this one. A non-conforming use is any parcel of land, use of land, building, or structure lawfully existing at the time of adoption of this chapter, or any amendment there to that does not conform to the use requirements, dimensional or other requirements of the district in which it is located.@

Commissioner Baldwin - AOkay. Why is this a non-conforming use?@

Dan Gurley - AUm, currently it doesn=t meet, um, the requirements as far as access for the width of the access road, um, it doesn=t meet the buffer requirement, um, I think that might be all that it doesn=t meet.@

Commissioner Baldwin - AOkay. So, so access and the buffer requirement.@

Dan Gurley - ACorrect.@

Commissioner Baldwin - ACorrect. Okay. And, um, that=s all I=ve got for now.@

Dan Gurley - AOkay.@

Chairman Hawkins - AAnyone else have any questions for Mr. Gurley?@

Angela Beeker - AMr. Chairman if I could offer one clarifying point for the Board. Um, when the Board adopted the Open Use Zoning text, the Board also adopted provisions governing the extent to which an expansion to a pre-existing non-conforming use must comply. And the language that the Board adopted says that with regard to those specific standards, an expansion to a pre-existing use, I=m paraphrasing but it says must meet it to the extent possible, um, and that is why some of the things are being requested as a waiver under that language. And then on the fencing, um, I=m assuming that everyone=s taking the position that that would be possible to meet that, but that=s why they=re asking for a variance. So if you=d bear that in mind as you=re hearing the evidence.@

Commissioner Baldwin - AAnd, and, and what Angie said was, was, triggered another thought. As far as, this has been defined as a non-conforming use, and you=ve said that is a non-conforming use because the access, as well as the buffering does not comply with the current standards. But, um, I guess what I=m getting at is, is an expansion of a non-conforming use, and Angie you=re saying the language that was put in allows those uses to continue as long as they@

Angela Beeker - AThe expansion has to comply to the extent possible.@

Commissioner Baldwin - ATo the extent possible.@

Angela Beeker - AAnd that=s the judgement call for the Board to make based on the evidence that you would hear. So you know, you would need to ask questions to be satisfied in your mind as to whether all of those standards could be met or not. And that=s entirely your judgement call.@

Chairman Hawkins - AAnd, and I think that=s in your, uh, in the text there. I, I don=t have the page number but it=s H, uh, which deals with the expansion and alteration of certain uses. And then there=s a little more on the, the next page on pre-existing uses. Uh, I don=t know what the lead in, uh, paragraph is for that, might have been 200-32.1(F) but@

Commissioner Baldwin - AI=ll find it.@

Chairman Hawkins - AThat might help you out a little bit on that.@

Commissioner Baldwin - AThank you.@

Daniel Gurley - AYes, in your excerpts I did include that, the sections that Angie wa, uh, was referring to regarding the expansion of pre-existing non-conforming uses in Open Use.@

Chairman Hawkins - AAny other questions for Mr. Gurley? Thank you.@

Commissioner Baldwin - AThanks Dan.@

Chairman Hawkins - AUh, petitioner=s evidence. Mr. Lapsley are you gonna give that?@

William Lapsley - AMr. Chairman, members of the Board, uh, for the record my name is Bill Lapsley. I=m a consulting engineer. I certainly don=t want the record to show that I=m a land surveyor. Uh, I=m not a licenced land surveyor. Uh, I=m here on behalf of the applicant as his agent. Uh, Junius Grimes who represents Hoopers Creek Quarry, LLC. Uh, that operates, owns and operates the quarry on this site. Uh, a little bit of background, uh, I have personally been involved with Mr. Grimes since he took over the operation of the quarry approximately 1993. Uh, it=s my understanding that the quarry operated on and off for a number of years prior to that. Mr. Messer may be able to recall, uh, the dates better than I, but I=m told that it op, it has operated as a quarry for, for many years. Mr. Grimes operates the uh, quarry to, uh, uh, to mine stone, I=ll call it decorative stone out of the quarry, uh, mainly for residential and commercial use, uh, facades of buildings and this sort of thing. Uh, it, there=s no crusher there or, or any kind of a processing operation. It=s a, a blast uh, the site of the mountain, uh, break up the rock, put it in baskets you=ve seem them the, in the, uh, display areas, uh, purchase areas, uh, around, uh, for, uh, new homes or reconstruction purposes. Uh, they put um= in baskets and then they truck them off the site to a sales yard in Asheville or direct to a project site that, that, they=ve sold, sold the, uh, stone to. So that=s the, uh, the process, uh what he goes through on the property. Uh, it=s all of this information is described in the application. Uh, but I=d point out to you that uh, that there are very fe, minimum number of employees here. Uh, there, the days that I=ve been on the site there=s five to, to seven or so, uh, employees, uh, that are working and gathering the stones and putting them in the basket. And, uh, one to two trucks a day is what Mr. Grimes tells me, uh, is come in, and take the stone that=s been gathered, load it on the truck and, and take it out. Uh, there is a very narrow access road, uh, as Mr. Gurley mentioned, uh, it=s a, doesn=t conform to the, uh, new ordinance travelway that=s the one that he=s used, uh, from day one. It=s a, uh, about a 12-14 foot wide access road inside a 30 foot, uh, right-of-way that gets into the quarry. Uh, two other bits of information I understand from the ordinance the applicant is required to present to you. One is the, um, uh, residential density, uh, within a mile of the, uh, uh, the property with the assistance of Henderson County GIS we, we have a map, uh, that shows all the homes in Henderson County, uh, and then I have added to that the tract in Buncombe County because this one mile radius does extend beyond the Henderson County limit. Uh, the breakdown of that for the record is in Henderson County there=s 1,332 acres within this area. And, uh, uh, residential home count of 680. I=m sorry, correct that, the acreage in Henderson County is 1,332, the acreage in Buncombe County is 680. The residential home count in Henderson County is 485 and on the Buncombe County side is 23. So the total density is 508 homes within 2,009 acres which gives a density of one unit per 3.95 acres. And the ordinance requires uh, that it be less than one unit in two acres. And so we understand the, the math here the density that we found is half of what the ordinance requires. So we have one unit for approximately four acres and the ordinance requires one unit, two acres. So that was one point that we needed to put in the record. The second is the separation from existing schools or health facilities. And again with the assistance of, uh, your GIS Department, uh, we have a map that shows that there are no schools, uh, or health facilities within the radius in, and Karen you=ll have to correct me is that a...@

Chairman Hawkins - AHalf mile.@

William Lapsley - AHalf a mile, uh, within the half mile radius of the site. Uh, on the Buncombe County side there are no schools or health care facilities, uh, within that radius. So we believe we meet, meet those two conditions. Uh, a foot note, uh, this process Mr. Grimes, uh, as I mentioned has been operating this facility for a number of years. Uh, he came to me last summer, indicated he needed to fill in his sediment control basin, that the mining permit that he has requires, uh, that he keep active, he needed to use that space and relocate his sediment basin. Uh, what we thought would be a, a relatively simple process to relocate his sediment basin, uh, turned out that we had to modify his mining permit which required him to, uh, fill out a substantial package of information, send it to Raleigh, which is still in the review process. Uh, that required that he notify all of the adjoining property owners by certified mail which he has done. Uh, it required him to notify a local governments that are affected. Uh, which included the County as well as the Town of Fletcher, which he has done. Uh, which prompted, uh, your Planning Department to call to his attention that would require, uh, this special use permit, uh, so I think it, it=s fair to say Mr. Grimes never dreamed that moving his sediment basin would require so much effort but, so be it that=s the regulation that he has to deal with. Uh, and he has complied with all of the step, uh, that we know of that he has to go through, uh, to do this. Uh, one other point with regard to his state mining permit modification, uh, the plan that you have presented before you is the one that was submitted to the State. The State reviewed it and has requested some changes to the plan. Uh, the changes did not enlarge the area affected, uh, but it does, uh, move the proposed sediment basin from the top of the hill that=s shown on the plan to the bottom of the hill. And the State was very adamant about that and that has been sent in to the State for final approval. Uh, but the plan has been modified somewhat, uh, at the request of the State, um, uh, Division of Land Resources, Mining Section. So, we=re, uh, expecting to get approval of that here shortly and hopefully that in conjunction with an approval from the Commissioners. Mr. Grimes will be able to proceed with his, uh, changing his sediment basin. If you have any questions I=d be more than happy to attempt to answer them. Uh, Mr. Grimes apologizes he could not be here this morning and, uh, asked me as his agent to fill in for him.@

Chairman Hawkins - AAny questions for Mr. Lapsley?@

Commissioner Messer - AYes Bill on the, uh, fencing@

William Lapsley - AYes.@

Commissioner Messer - Athat he asked for the variance. Would you mind stating how much fencing do you think that would require?@

William Lapsley - AWell as I understand the ordinance, and, and, Mr. Gurley maybe can correct me, uh, under the, the ordinance if this was a new facility the entire area has to be fenced. Uh, because this is an expansion of a pre-existing condition the fencing would apply to the new expanded area. Uh, the existing quarry area does not have a chain link fence, barbed wire, or anything like that around it. Uh, and the area that=s proposed for expansion would be actively involved in the day to day operation of the quarry, and so it seems to Mr. Grimes that, uh, having a fence around this small area, with respect to the entire operation, didn=t seem to make a whole lot of sense. Uh, he has not had any problem with, with public, uh, disturbing the property or coming in. There=s been no, uh, as far as I know there=s been nobody hurt or nobody accessing the property that would, from security standpoint that he would need to have a fence there to protect the public. Uh, and so, uh, for those reasons, uh, he felt that it was unnecessary to fence this area. So that=s why he asked for a variance.@

Commissioner Baldwin - AIs the property posted?@

William Lapsley - AYes. Yes the mining permit, uh, requires around the edge, uh, especially the upper area above the quarry, to be posted and he has, has done that. Has apparently has done that for many years, from day one.@

Chairman Hawkins - AAny other questions for Mr. Lapsley at this time?@

Angela Beeker - AI have one clarification question. Um, in the application, the State application it did indicate that there is some permanent fencing in place in@

William Lapsley - AThere=s some barbed wire fencing, he tells me that=s very old around the prop, uh, at the property line on the upper end on the top of the mountain, that continues to be in place but, uh, what little I saw I wouldn=t exactly call it a security fence of any kind. It=s old cattle fence that, that somebody put up years and years ago.@

Angela Beeker - AThat=s in the completed excavations area?@

William Lapsley - AIt=s above, it=s above the excavation area.@

Angela Beeker - AUm, and then the other clarification question, um, it=s the applicants position that except for the standards which the applicant has specifically requested a waiver, that the application meets all those specific site standards.@

William Lapsley - AWe believe it does, yes.@

Chairman Hawkins - AAny other questions for Mr. Lapsley? Thank you. Staff, do you have additional evidence?@

Daniel Gurley - AOkay thank you Mr. Chair. Um, as stated earlier this, um, application did have to go to the Planning Board for review and recommendation. Um, at it=s December 17^th, 2002 meeting the Henderson County Planning Board did review, um, this application as submitted by Mr. Grimes and, um, made the following recommendation. Um, the Planning Board members voted unanimous, unanimously 5-0 to send the Board of Commissioners a favorable recommendation on this application, um, with the following conditions. One being fencing, um, either the applicant wants to receive a variance for the fencing or the area would have to be fenced per the ordinance.@

Commissioner Baldwin - AWhich area?@

Daniel Gurley - AThe expansion area.@

Commissioner Baldwin - AOnly the expansion area.@

Daniel Gurley - AWe are only, we are only discussing the expansion area in this application, nothing about the existing quarry. Just the sediment basin and the, um, waste fill area that=s being expanded. Um, saying that, um, the condition was either the applicant would have to fence that area, or receive a variance, um, from the Board of Commissioners. Um, the second condition being, um, compl, compliance with federal, state and local laws. Um, the applicant would have to receive, um, approval from the state for his amendment to this mining permit. Um, and thirdly, um, the amendment to the application site plan, um, as Mr. Lapsley stated, um, during the Planning Board meeting it was brought to our attention that, um, the site plan submitted did not indicate the exact location of where the sediment basin, sediment basin was going to be located. Um, they asked that, um, a plan be presented showing that new location. Um, the draft, the draft minutes, and I will say these are draft minutes, um, the Board, the Planning Board doesn=t meet again until the 22^nd, I believe. 21^st excuse me, um, to accept these minutes, so these are draft minutes, um, that are presented. And this, uh, is basically what was said at the Planning Board meeting. Um, also, uh, for your information we have the copy of the site plan that we received, um, including the sediment, uh, the location of the sediment basin and the expansion of the waste fill site. Um, this is, um, being shown on the pedestal here as well. Um....photos, yes, I=m sorry. Uh, we to have photos, um, they show what we thought was going to be the sediment basin, um, and that area. Um, as Mr. Lapsley stated the sediment basin is now being planned on being moved so I=m not sure if you even care to see those photographs of where we thought it was going to be when we did our site...@

Chairman Hawkins - AI think as far, uh, as where the State determines you have to put the sediment basin is, is gonna be one thing but I, I don=t think it=ll affect, uh, as I understand it whether or not you, the Board grants a special use permit and/or variance to the fencing. I don=t think that will be germaine.@

Angela Beeker - AYou don=t regulate that.@

Chairman Hawkins - AWell. So.@

Daniel Gurley - AOkay.@

Chairman Hawkins - AUh, do you want to enter those photos in as evidence or@

Daniel Gurley - AWe can enter them if the, if the Board wishes, um, as I stated the, the photographed area is that of where we thought the sediment basin was going to be at that time.@

Commissioner Moyer - ANot really relevant now though, we don=t need um as evidence.@

Daniel Gurley - AOkay. Um, then I believe that=s all that we have right now.@

Chairman Hawkins - AAny other questions?@

Angela Beeker - AYes sir, um, Dan, you have read the Planning Board minutes correct?@

Daniel Gurley - AYes.@

Angela Beeker - AThey reflect, um, a number of statements that you made in those minutes. Have you read those?@

Daniel Gurley - AYes.@

Angela Beeker - ADo you re-adopt those say under oath as your statement as well?@

Daniel Gurley - AUh, yes I will.@

Angela Beeker - AOkay. In the, um, Request for Board Action for the Planning Board, um, there were staff comments in that as well. Did you make those?@

Daniel Gurley - AYes, it was...@

Angela Beeker - AAnd the reason I=m asking is because it contains basically a staff analysis of like the buffer, and the, whether it=s possible for him to comply.@

Daniel Gurley - AYes.@

Angela Beeker - ADo you readopt those statements also@

Daniel Gurley - AI do.@

Angela Beeker - Atoday under oath?@

Daniel Gurley - AI do.@

Angela Beeker - ASo what, what do those statements reflect regarding whether or not it=s possible for them to comply with the buffer or not?@

Daniel Gurley - AUm, basically as, as you see on the site plan, um, if, and the buffer requirement is that of, um, 500 feet. If you notice the, the width of the property, um, and the location of the expansion area, um, the 500 feet the property=s not even 500 feet wide at that point. Um, so as stated in the, uh, Planning Board, um, Request for Board Action, um, it would be almost impossible for him to meet the 500 foot buffer at that point considering his property=s not even 500 feet wide. Um, so, and as the ordinance states, um, any expansion to a pre-existing, non-conforming use in an Open Use District, um, the applicant is to try and meet the standards to the greatest extent possible. Um, it=s, it=s staffs opinion that, um, the buffer that he is showing that he can do is, is the greatest extent that can be done since obviously the 500 foot buffer can=t be, um, achieved.@

Angela Beeker - AThe, um, area that has a dotted line around it, that=s the quarry area but the property boundary is the larger boundary. Is that correct?@

Daniel Gurley - AYes. Um, as Karen is pointing out now on the television, um, that dotted line is the expansion area that they=re looking at. Um, the, the dark black line that surrounds, that goes on the outside where pencils, um, line. Um, that=s the property line.@

Angela Beeker - AOkay.@

Commissioner Baldwin - AThe dark, um, excuse me, the dark areas, um, the dark areas that, uh, where the expansion is going to occur. Now what type of activity is gonna take place in those areas, is this additional area to be mined.@

Daniel Gurley - AIt=s, it=s@

Commissioner Baldwin - AMr. Lapsley. The, the dark areas...@

William Lapsley - ANo sir.@

Commissioner Baldwin - A...for expansion.@

William Lapsley - ANo. There is no expansion of the mining extraction.@

Commissioner Baldwin - AOkay.@

William Lapsley - AThe, the area, the expansion area that we=re, that=s before you is for waste material. It=s for dirt and smaller rocks that don=t end up in the baskets, that they=re not hauling off site. And, uh, there=s, there=s, that=s all that=s, and, and the sediment basin.@

Commissioner Baldwin - AOkay. So, there=s no additional mining.@

William Lapsley - ANo. No sir.@

Angela Beeker - AMr. Lapsley what would you estimate the length of that boundary to be on it=s narrowest, the property boundary not the mining boundary. I don=t see any dimensions on the drawing.@

William Lapsley - AThis property down here?@

Angela Beeker - AThe, the@

William Lapsley - AOr the width here?@

Angela Beeker - AThe width, yes sir, on that narrowest end.@

William Lapsley - AWell this is 1 to 100, uh, and this area, is probably about 500 feet. Uh,@

Daniel Gurley - AOkay.@

William Lapsley - AVery close to that.@

Angela Beeker - AOkay.@

William Lapsley - ABut the mining...to answer your question...the mining permit for extraction is this area right here. And there, he=s limited to that without applying for another expansion of the mining operation which he=s not, uh, this is the area, that=s crosshatched that, that he=s currently working in. Okay so...@

Commissioner Baldwin - ASo the dashed area he=s permitted.@

William Lapsley - AYes.@

Commissioner Baldwin - ACurrently permitted.@

William Lapsley - AYes, that=s@

Commissioner Baldwin - ATo mine within that area.@

William Lapsley - AYes. Yes. Within that boundary the current waste material area and sediment, existing sediment basin=s right here. So what we=re proposing to do, is to move this from here to here. So that he can use this area to fill it in with waste material, uh, and continue to operate.@

Commissioner Baldwin - ASo, so the, let me see if I can get, understand this right now. The mining=s not gonna increase and the dark areas, uh, if you, if you=d point to those, uh.@

William Lapsley - AThis is existing sediment basin.@

Commissioner Baldwin - AOkay.@

William Lapsley - A...moved. It is, this area is the travelway or the access road to the site, and we=re proposing to regrade that to help with slopes and reseed it and gravel this road, and that=s why that=s darker. So part of the erosion control permit was to improve this roadway.@

Chairman Hawkins - ABut most of that=s in the Fletcher ETJ is it not? The roadway?@

William Lapsley - AThe Fletcher ETJ is right here.@

Chairman Hawkins - AOkay.@

Several people speaking at once.

William Lapsley - A...change in the activity or the expansion, it=s just that it=s a roadway regrade, and that, the expansion area is right here.@

Commissioner Baldwin - ASo that=s the only part that=s being expanded.@

William Lapsley - AYes. That=s correct.@

Commissioner Baldwin - AOkay.@

Chairman Hawkins - AAny other, uh, evidence that staff needs to present?@

Daniel Gurley - ANo.@

Chairman Hawkins - AAny questions? Any questions?@

Commissioner Baldwin - AWell, I wanted to get, get another thing squared away. It, non-conforming uses we, we read the definition, we said, you explained why this is a non-conforming use, the right-of-way or entrance into as well as the buffering. And currently your standard says it=s 500 feet is the buffer?@

Daniel Gurley - AYes.@

Commissioner Baldwin - AOkay and we=re gonna be moving into it, that 500 foot area, matter of fact the 500 foot area couldn=t meet that right now right?@

Daniel Gurley - ACorrect.@

Commissioner Baldwin - ASo we=re expanding a non-conforming use, or the applicant is, is attempting, uh, it=s an, it=s an attempt to expand a non-conforming use. So we=re gonna increase the degree of non-conformity. Is that correct?@

Daniel Gurley - AIf, if you read that, that back section of the ordinance, and Angie can jump in, um, as well when it talks about the expansion of free existing non-conforming uses.@

Commissioner Baldwin - AAs much as possible, but when does that stop. I mean, he comes back next year and he wants to expand, does he move right up to the property line because he=s doing as well as he can do? That=s my question.@

Daniel Gurley - AUm, I believe dur, through the special use permit process that=s kind of left up to the Board to make that decision. As to what you believe the greatest extent shall be.@

Commissioner Baldwin - ASo in essence we=re granting the variance, it=s set up so that we grant a variance when we approve this if we choose to do so.@

Daniel Gurley - AYes, I believe that=s how the language was written in the Zoning Ordinance.@

Commissioner Baldwin - AOkay.@

Chairman Hawkins - AAny other questions? Thank you. Is there any additional parties evidence? Sir will you come forward.@

Richard Anderson - AHi, my name is, uh, Richard Anderson and, uh, we own, my wife and I own the property directly in front, the 15 acres. Um, the quarry and the State I=m fairly familiar with and the, with that it was part of my wife=s family and they had had it for many, many years. Uh, it was really not used very often. It was originally started as a WPA Project during, uh, the depression. And used, and dug out at that point and then pretty much after that it went, it just wasn=t used very much. There was a lot of rock up there and occasionally somebody would go up, but the road was almost impassable. Um, when they took over it they had to, uh, you know get, get their mining permit and things like this and we were told at that time a lot of, uh, things that it was not gonna be expanded. Uh, the, uh, nu, State Department of North Carolina Environmental and Health and Natural Resources gave them a permit. Um, part of that permit, it did say that the provisions for safety to persons and to adjoining property must be provided at all, in, in all excavations in rock. We were told at that time, verbally, that it was the entire project was gonna be fenced. That=s never been done. Um, as you=re aware that area of the county has grown a lot. There=s a development I think that starts about a quarter of a mile from there and I believe the density is either one, or either, uh, three or four houses per acre. Um, their provision that they=re talking about that it, it, uh, fits within the density uses a lot of property from Buncombe County. Which is really over the top of the ridgeline. And, uh, it=s really unbuildable property. But right down where the quarry is, and if this, and dam would ever let loose it=s all down hill and goes towards that location. In fact the drainage, I think you=re planning a fire station out there is, kinda where the drainage would go. Um, as you can tell I=m probably against this. Uh, there is some safety issue I feel. Uh, they have moved the, uh, their gate all the way down to the road and put a lock and blocked the, uh, the access to our property as well as theirs, and I was told the reason they wanted to do that was because of a lot of people going up that way.@

Commissioner Baldwin - ASo, so the gate=s been moved closer to Jackson Road?@

Richard Anderson - A...it=s right on Jackson Road.@

Commissioner Baldwin - AOkay.@

Richard Anderson - AIt=s right on Hoopers Creek Road, excuse me.@

Commissioner Baldwin - AOkay, yeah, Hoopers Creek.@

Richard Anderson - AUm, and, we don=t have a key but I guess I could get one but the, the, um, um, that road is now entirely blocked off and I was told the reason they put it down there was because people were coming up on that property. And, with the addition of, what is that 400 houses just at the bottom of the quarry. You know there=s gonna be a lot of kids, there=s gonna be a lot of access. You know, I, I=m of the opinion that not only should the part that they=re discussing with the you should be fenced it for protection, but the entire quarry should be because it must be 100 foot tall at the top. And, uh, you know any kids walking through the woods, there=s a lot of nice paths up there, uh, that is a safety issue from that point. Um, any questions do you have?@

Chairman Hawkins - AMr. Anderson let me, let me clarify, cause I wasn=t quite sure your, um, your concern. Uh, it would appear that if they are locking the gate on Hoopers Creek Road that, that would be a plus in the safety area, not a minus but I...@

Richard Anderson - AWell it, it, it blocks my access to my property okay. And it=s not supposed to be blocked. They arbitrarily without permission put a, put a, uh, a fence down there.@

Chairman Hawkins - AOn the easement or...@

Several people speaking at once.

Richard Anderson - AOn the eas, on the easement. We came down there one day to go up on the property and found this locked gate. And inquiring further about it we were told that they had of problems with people coming up there, now that=s driving in. There=s, there=s no, there=s no provision at all for somebody walking around the gate. So, and, and walking on the property. An, anybody could walk on the property.@

Commissioner Baldwin - ASo were you issued a key to the gate?@

Richard Anderson - ANo. We have never been but, truly a private matter.@

Chairman Hawkins - AAny, any, uh, other, uh, evidence, uh.@

Richard Anderson - ANo, other than, other that I think that the density, if you would look at it for the, the Henderson County portion, is, is probably at or very close to the, the maximum that you=d allow. Uh, I wish you would, you know try to protect all those people in there as much as you can. Uh, with fencing or whatever we need to do.@

Chairman Hawkins - AOkay.@

Richard Anderson - AOkay? Thank you.@

Chairman Hawkins - AThank you.@

Angela Beeker - ABefore you leave, Mr. Chairman he has an opportunity to ask questions of any of the other persons who have spoken.@

Richard Anderson - ADoes anybody have any questions for...@

Chairman Hawkins - AThat=s the next item, rebuttal.@

Angela Beeker - Do you have any questions for them?@

Commissioner Baldwin - AI was gonna ask one, one more of him. What about and intensity of the operation as far as, uh, uh, just the mining activity what.@

Richard Anderson - AGenerally I have not, I, I, I don=t, I don=t live out there. You know, I=ve been told that you can hear the blasting, there=s not a lot of blasting though I=ve heard a little bit more from the people that have moved into the development out there that they didn=t, they were not aware of it at the time. And they were kinda surprised to see that there was actually mining up the hill from them.@

Commissioner Baldwin - AWhat=s the name of the development?@

Richard Anderson - AUm.@

Several people answered ALivingston Farms.@

Unidentified male - AI=m sorry what was the name of the development?@

Unidentified male - ALiv, Livingston Farms.@

Richard Anderson - AAlso there was some concern about ETJ. My wife had, she was told that it was going to be in the ETJ of Flecther. We=re in the ETJ of Fletcher. We, we abound, we, we butt right up to theirs, so I was just trying to, I didn=t know if that had ever been looked into. Is it really or not, has it been surveyed out?@

Chairman Hawkins - AWell that was a question I asked earlier. Mr. Lapsley I think addressed that as to where the ETJ boundary came to apparently was very close to the entrance of the end of the road down there on Hoopers Creek. Karen can you@

Richard Anderson - AYeah all our 15 acres is in the ETJ.@

Chairman Hawkins - AKaren can you show that, uh.@

Daniel Gurley - AUh, basically where Karen=s showing now is the access road into the subject property. Um, the dark black line, um, you can see the majority of the property of the quarry is located in the Open Use District. Um, the ETJ is the, the rem, the remainder of that black line, and I believe Livingston Farm is where ... is written on that map.@

Richard Anderson - ADid you want to see what our prop, which our property is? I can show that to you.@

Chairman Hawkins - AIs it on@

Richard Anderson - A...on there if they can put the map back up.

Chairman Hawkins - AIs it on that map there also?@

Muffled discussion.

Chairman Hawkins - AOkay.@

Richard Anderson - A...see it right there.@

Chairman Hawkins - AOkay. Is, is, do you access off of Hoopers Creek directly?@

Richard Anderson - AYes, off that same access road.@

Chairman Hawkins - AOkay, you, you don=t have another access off of Hoopers Creek other than the access road in to the back?@

Richard Anderson - ARight. There never was built one.@

Chairman Hawkins - ABut if I, if I read that map correctly then the larger part of this road leading in there is in the Fletcher ETJ.@

Richard Anderson - AOh yeah, I pay the taxes on it every year.@

Chairman Hawkins - AYeah. Okay.@

Commissioner Baldwin - AI=d, I=d just like a, just a few questions and I=d like to ask Bill these same questions. Uh, do, in your opinion do you believe that the area is being expanded as been shown to us as far as the operation goes?@

Richard Anderson - AI=ve got an old picture, which was taken in the spring, where you could barely see the quarry. Alright this was taken, uh, in 90, in the mid 90's when they were originally asking for the permit. You know and, if you look at it now and you go out there today and the picture you can see the, the, the quarry has gotten bigger. Even though the trees over that period grew you can still see more of the quarry.@

Chairman Hawkins - ABut that may be a function of what they=ve taken out versus where the tress are would it not?@

Richard Anderson - AWell, now maybe it=s my misunderstanding but at the original hearings we were told that the quarry would not expand beyond the boundaries that were already there. So in my way of thinking, the trees get bigger the quarry should get smaller. You shouldn=t be able to see it as well. You know if they=re working within the same confines.@

Chairman Hawkins - ADo you wish to enter that, um, picture?@

Richard Anderson - AIf you=d like it, yes.@

Chairman Hawkins - ABoard, board, need that? Like it?@

Angela Beeker - ASince he has proffered it I would enter it for the record. Um, would you hand that to Mrs. Corn so that the Board members can see it.@

Chairman Hawkins - ADo we have to have some fancy number for it?@

Angela Beeker - AI would think, we needed to keep it straight.@

Commissioner Baldwin - AExhibit 1.@

Several people speaking at once.

Angela Beeker - ADo you have any other pictures that you wanted to show the Board?@

Richard Anderson - ANo that one, pretty much I stood back on our property line and shot it. The length of that field which was an old cow pasture looking up towards the quarry and the top part of it=s where our trees are. And, uh, like I said, we were told when it was gonna be the entire thing would be fenced and then after a period of three years as the trees grew the, the quarry would pretty much be hidden, and you can see it as well today so that=s what makes me feel that the quarry is bigger now than it was. That=s why I was hoping they would put a fence around it and it would be real obvious at that point. Cause the fence would fall down. But I=m, I=m, if you would look at the density issues in there particularly since the new development and I understand you=re going to get sewer out that way. That there=s a chance of even more development in that part of the county that you=re going to be way over the uh, the uh, home density requirements for the, for mining.@

Angela Beeker - AMr. An, Mr. Anderson do you have any questions for Mr. Lapsley or for, um, about, or for Mr. Gurley about anything they=ve said today?@

Richard Anderson - AUh, no other than I just differ some among the, on the usage of, of, the density on property I think.@

Angela Beeker - AOkay.@

Richard Anderson - ADid they have any questions for me?@

Chairman Hawkins - AWell we could go ahead and get those if, uh, anyone has either any rebuttal evidence or additional questions we=ll entertain those.@

Commissioner Baldwin - AI would like to ask Dan another question about the density. Uh, did you guys calculate the density on, within our jurisdiction with respect to this?@

Daniel Gurley - AUm, Karen may be more apt to answer that than I was. She was involved in that process. Um, I know that Henderson County GIS was the one that produced the numbers, um, the numbers they=ve got, and here=s the map that was used. As you can see the subject property is in blue, um.@

Commissioner Baldwin - ASo if we exclude the Buncombe County side the density is gonna go up, clearly.@

Daniel Gurley - AMr. Lapsley I think ran those numbers as well. You can see the green dots are actual residences. Um, you can see how many residences are actually in, um, the County line is that blue line that, um, goes across the map. And I=ll let Mr. Lapsley, he might be able to explain his, his formulas that he used or Karen a little better than I could.@

Commissioner Baldwin - AI had a couple questions for Mr. Lapsley. Um, as, as far as, as far as the operation goes, would you, would you say that the operation itself is being intensified by what=s being requested?@

William Lapsley - ANo sir. No.@

Commissioner Baldwin - AIt=s not.@

William Lapsley - ANo. They=re not adding additional people or equipment.@

Commissioner Baldwin - AOkay.@

William Lapsley - AUh, so I would, the intensity is the same as it is today.@

Commissioner Baldwin - AThe only expansion we=re looking at is area, as to what=s being used@

William Lapsley - AYeah.

Commissioner Baldwin - Ato support the mining operation.@

William Lapsley - AIt provides the operation additional space to put the waste materials that they=re not mining.@

Commissioner Baldwin - AOkay.@

Chairman Hawkins - AUh, Bill as far as the, uh, as, as far as you know, uh, when the state considers, u, a mining permit, uh, would, does the state consider this an expansion of the mining operation or just a, uh, a relocation of where the waste and in this case the sediment pond is gonna be located.@

William Lapsley - AThe, the, the language as I understand it and the state permitted is a modification to the existing permit. And the modifications include a number of things, one of which is expanding the outer edge. So, I, I, the, the technical term as I understand it is to modification. And any time an applicant modifies their existing permit it requires them to go through this process, public notice to, to you all plus all the neighbors and for the state to have a, another crack at the whole area inside the permit. In other words they, uh, the way I understand it they really have broader, uh, powers under this than, than maybe you do in that they can revisit, uh, the entire mining operation, uh, whenever you modify it. And, and that=s what, what they have been doing, uh, since we sent this in. Uh, to, to answer Commissioner Baldwin=s question if my math is correct just looking at the Henderson County side, and I, I gave you those numbers which were 485 residential units in 1,332 acres. My math is correct that=s one unit for every 2.75 acres. So yes it does come down from the 3.95.@

Commissioner Baldwin - ABut our standard is what?@

William Lapsley - ABut your standard is one unit for two acres. So we=re, we=re still substantially less than that. Uh@

Commissioner Baldwin - AOkay.@

William Lapsley - AMr. Anderson=s comment is probably correct in that in the future there will be additional density there. I, I would not refute that. Uh, as to how fast it will approach one unit per two acres I don=t know and I don=t, uh, and when that will happen or if, uh, I don=t know. Uh, with respect to a fence, uh, around the entire operation, uh, I don=t recall that being in Mr. Grimes permit that he got in 1993. Uh, if it was in there I can assure you that the state would make sure that he has it. He, uh, as far as I know ever mine operation that I=ve been involved with if it=s in the state permit then they would mandate that it be put in. Uh, and to the best of my knowledge that=s not in his permit.@

Commissioner Messer - ABill in length, uh, how far would you say it is from Hoopers Creek Road to the area that he=s wanting to, uh, reconstruct?@

William Lapsley - AUh, this is Hoopers Creek Road@

Commissioner Messer - ARight.@

William Lapsley - Aon the map, uh, it=s more than a thousand feet. It=s, it=s probably 1,200 feet, a quarter of a mile, something like that I would guess. 1,200 feet something like that. ... the other point Mr. Anderson mentioned the gate, yes he did, the gate was originally, uh, up in this area here. Uh, and I=ll certainly bring it to Mr. Grimes attention, that, make sure that the adjoining property owner has a key. I don=t know of any reason why he would not allow them to do that. Uh.@

Commissioner Baldwin - AOf the, of the 32.5 acres Bill that was stated, I can=t remember if it was you or the, or staff said that five acres is currently permitted for mining activity. Is that correct?@

William Lapsley - AYes. That, and that area right here is the five acres.@

Commissioner Baldwin - AOkay, So you did have to go back to the, uh, uh, amend your, your state permit to increase the area that you=ll be using for the operation.@

William Lapsley - AThat, the, the area for the mine, for the stone extraction, the mining operation itself, the, these areas were approved nine years ago.@

Commissioner Baldwin - AOkay.@

William Lapsley - AHe is working within those areas@

Commissioner Baldwin - ARight now.@

William Lapsley - Ato the best of my knowledge.@

Commissioner Baldwin - ARight.@

William Lapsley - AAnd, one of the questions was does he have any desire to go beyond this area. No, he=s, uh, he, he will, must stay and has no plans to apply to expand the mining extraction area.@

Chairman Hawkins - AAny other, uh, questions, uh.@

Angela Beeker - AMr. Chairman I have one for Mr. Lapsley, Um, did Karen provide you a copy of the minutes from the Planning Board?@

William Lapsley - AUh, I was just given them I have not, uh, read them.@

Angela Beeker - AUm, I was wondering if you could, um, take a minute while we=re concluding everything to read your statements in there to see if you would readopt those under oath today.@

William Lapsley - AI=ll be glad to read that if you=ll give me just a second.@

Chairman Hawkins - AWhile he=s doing that do we have any other, uh, rebuttal of evidence? Mr. Anderson.@

Richard Anderson - AOne other question about Livingston Farms.@

Chairman Hawkins - AYou want to come on up to the mic sir?@

Richard Anderson - AOne other question about Livingston Farms. I understand that they have purchased a large piece of property along Jackson Road and are planning an expansion. Have ya=ll, you=re aware of this? And I didn=t know how many homes they were planning in that area. It=ll also affect the density cause that=s certainly within a mile. I would, I, it=s a big piece of property I can tell you.@

Chairman Hawkins - AI don=t know if that=s, uh.@

Richard Anderson - AI was gonna say if you=re looking at density it may not, today the homes may not be there but as quickly as they put >um up they could be here in a very short amount of time.@

Chairman Hawkins - AWe=ll probably have to deal with what=s there today when we make the decision.@

Richard Anderson - AAlright.@

Chairman Hawkins - AAny other, uh, any other evidence?@

Karen Smith - AMr. Chairman could I just make one comment@

Chairman Hawkins - AYes please.@

Karen Smith - Aand it would kinda go back to that. Um, there is a section in the Open Use District, it=s 200-32.1(i) that deals with subsequent events, and in that paragraph it says the development occurring around a pre-existing use, uh, for which, or use for which a special use permit was not required at the time it was established will not affect the ability of such use to alter or expand its facilities or operations. And so we=re presenting the information about the density standard but I do not believe that, um, even if it did not meet the density if we would be able to deny it on that basis. Um, the other thing I was going to point out is there are provisions in that open use section. Once they=ve gone through this process the first time, on the expansion, um, under the provision that they=re using, think after that there are other provisions in the Open Use that they would have to use if they wanted to expand or alter. So the, the standards may change a little bit and whether or not they=d have to comply with the specific site standards would be a different situation.@

Chairman Hawkins - AOkay.@

Karen Smith - AOkay.@

Chairman Hawkins - AThat may answer part of Commissioner Baldwin=s question I think on further expansions. Bill do you want to respond to, uh Ms. Beeker.@

William Lapsley - AYes, I=ve reviewed the draft minutes and, and this represents, uh, what I stated at the hearing and I stand behind it.@

Angela Beeker - AOkay, thank you.@

Chairman Hawkins - AAre there any other rebuttals, questions, or evidence to be presented at, anyone? Okay, all the evidence had been given we=ll ask the petitioner if he has any closing remarks.@

William Lapsley - ANo s, no sir.@

Chairman Hawkins - AStaff do you have any closing remarks?@

Daniel Gurley - ANo.@

Chairman Hawkins - AAdditional parties, any closing remarks. Yes sir?@

Angela Beeker - AHe=s not a party.@

Commissioner Moyer - AHe=s not a party.@

Angela Beeker - AHe=s not a party.@

Chairman Hawkins - AAre you@

Unidentified male - AI, I haven=t been sworn in. No.@

Chairman Hawkins - AWere, were you recognized as a party to the proceedings?@

Unidentified male - ANo.@

Chairman Hawkins - AUh, are there any additional parties closing remarks. Mr. Anderson I think you were the only additional party. Uh, petitioner do you have any final closing remarks since you didn=t have any to begin with?@

William Lapsley - ANo sir.@

Chairman Hawkins - AAlright, thank you. The Board now can have some discussion that the evidence been presented and the closing remarks concluded. Um, it=s appropriate of course for the Commissioners to discuss the issues presented today. For a vote a decision we can either vote today and direct staff to bring back findings of fact and conclusion consistent with the decision and the Board=s discussion or we can continue our discussion and decision to a later date. I would remind the Board that we have to have a, uh, written decision within 45 days of the conclusion of the hearing today. So, uh, I don=t know what the pleasure of the Board is, you want to have some discussion on the matters that=s been presented, see where we end up.@

Commissioner Baldwin - AWell, a couple of things that come to mind. One is that as, that area of Henderson County begins to, or continues to grow, and it=s going to, um, I don=t know if we=ve fully investigated really the impact on the community of this operation. But there are two things, one is a buffer. We=ve got a 500 foot buffer which is a standard, but because of it being grandfathered in, it=s allowed to increase the degree of non-conformity, uh, uh, as much as necessary. Uh, the density. Uh, you may find the density in the area exceeds that standards set out in this ordinance but again because it=s a pre-existing use, uh, that really doesn=t make a difference either. I think we=ve got, uh, to work with the ordinance that we=ve, we have on the books. I don=t particularly like the standards, but that=s how it reads. And it reads so that they can continue to increase the degree of non-conformity. If we=re gonna have standards lets have um, but if, if not why is it set up so that we can continue to, uh, increase the degree of non-conformity of a pre-existing non-conforming use. I don=t, I don=t quite understand that. But we have to deal with what we=ve got on the books. But one of the things we can do to mitigate the impact of this is conditions that we can place on this permit. If we chose to do so.@

Chairman Hawkins - AAny, any other comments, uh, on the, or thoughts as we, uh, look at this.@

Commissioner Moyer - AI guess mine would be Grady this is not really an expansion of the operation. It=s just an adjustment to the, uh, storage area, uh, and I think to, uh, require a fencing around the small portion doesn=t make a, uh, lot of sense. Um, so I would support, uh, granting this for, I think my concern and I would express it to the, uh, to the applicant, petitioner is that, uh, there=s a substantial issue there with respect to liability and, and danger and I would hope, uh, the petitioner would take that into consideration because the, the appropriateness of fencing part of this to avoid a heck of a future lawsuit, um, would be certainly worthwhile. And if you talk about an attractive nuisance, when you=re sittin= on one, uh, be very candid, and, uh, so I don=t think we should require it but I would hope the petitioner would take that into consideration.@

Chairman Hawkins - AOkay. Uh, I would, uh, maybe just remind the Board that, uh, that you are able to grant the, um, uh, the permit if you, uh, feel that the, uh, particular case has met all the required general standards that are listed over on 200-56, um, the, I think the ones that, uh, uh, that we have listed here are the, uh, ones that deal with detrimental to the public welfare, uh, or property or public involvement in the neighborhood, uh, minimize the effects of noise. We=ve had some, some discussion on that, um, uh, I, I don=t see it as a worsening the traffic congestion, I don=t think there=s very much congestion on the, the little road that leads into the rock quarry. Um, obviously one of the areas that we can=t determine at this point is whether or not it meets applicable federal and state local laws cause it think that permit=s still out. But, uh, that, that certainly is a condition on meeting the general, uh, site standards. Uh, it=s involvement in the Comprehensive County Land Use Plan, um, uh, I, as old as that mine is it was probably already, already there before the current Comprehensive Land Use Plan was written. Um, and, uh, I think Bill would tell us that the, we probably don=t a thoroughfare plan through there at the moment. No pun intended, but um, uh, the other areas that are list down there, uh, you can take a look at that, and. I just see if, uh, if there=s any of those specific site standards that, uh, the Board feels is not being met or, has been addressed such as the, um, issuance of the permit. If there, if there=s anything in there you see that needs additional discussion.@

Commissioner Baldwin - AIf we have a mine, this is a question for the County Attorney, if we have a mine that locates, is it possible to locate a quarry today in a Henderson County Open Use District?@

Angela Beeker - AIs it possible?@

Commissioner Baldwin - AYes. To locate a new one?@

Angela Beeker - AAssuming the standards could be met. A new one would have to meet all the standards.@

Commissioner Baldwin - AOkay.@

Angela Beeker - AUm, so, you=d have to calculate the, d, you know a sparse area of the county, maybe a densely population area of the county probably not.@

Commissioner Baldwin - ARight.@

Angela Beeker - ABecause of the residential.@

Commissioner Baldwin - ABut if it had a large enough tract it, it, it could, it would have to meet the 500 foot buffer.@

Angela Beeker - AIt would and it would have to meet all, all of those standards. Yes sir.@

Commissioner Baldwin - AAnd if they wanted to come back 5 years from now if it went in today, and they wanted to move into this 500 foot buffer, they would not be allowed to do so.@

Angela Beeker - AThat=s correct unless the Board granted a specific variance.@

Commissioner Baldwin - ABut if it=s existing, it=s pre-existing, um.@

Angela Beeker - AThey wouldn=t be protected by that language that says they only have to meet that standard to the extent possible. The buffer right now, um, the, they get a little bit of a break because they were pre-existing. And the language says if you were pre-existing you only have to meet those standards to the extent possible. And so that=s the pro, additional protection that they have that a new one would not have. If a new one wanted to be able to encroach in that 500 foot buffer, they would have to meet all the standards for a variance which I want to point the Board to anyway in your book to review those standards for variance, cause you=re going to have to be able to make findings@

Commissioner Baldwin - AFindings on those.@

Angela Beeker - Athat would support the granting of that variance as well as this variance.@

Commissioner Baldwin - ABut, a, a new use if it goes, if it goes in could not become a non-conforming use without violating the 500 foot buffer.@

Angela Beeker - AThat=s correct.@

Commissioner Baldwin - ABut if there=s a, but if there=s a pre-existing use, and let=s say it=s 400 feet from the property line then it can increase the degree of non-conformity, by moving into that.@

Angela Beeker - AIf the Board determines that meeting that is not possible. Yes. I, I, enough, it=s your discretion, nothing says you have to allow them to increase the nonconformity however the language does say they don=t have to meet it if it=s not possible to meet it. So, in my opinion this one, it=s not possible for them to meet it so. But it=s your, it=s your discretion. I mean, has a little bit of a difference there I think, the, it, it=s the Boards discretion.@

Chairman Hawkins - AWell let me just, I guess kinda finish the thought cause we=re looking at two things here. One you=re looking at, uh, granting a special use permit and then as a, a separate question you=re looking at variances. And I just went through, uh, the, uh, items that were listed for the special use permit. Those, uh, uh, through G, uh, I don=t have a page number here but they=re under 200-56, special use, dash 56, special uses. Those are the general site standards and, uh, I, I think that, uh, most of these aside from the one we pointed out as far as the, uh, establishment requiring a special permit shall be located or developed in such a manner as to comply with all applicable federal, state, and local laws, rules and regulations. That=s the one area that we hadn=t got the information back on as far as the, uh, mining permit, uh, that I, I assume the state=s working on at this time. Are there any of those other items listed there that you don=t feel is, uh, has been demonstrated as, uh, meeting the general site standards? If not it would seem it would be incumbent on the Board then to, uh, uh, having, having met the requirements of the ordinance to, uh, to as, I think Commissioner Moyer indicated favorably, uh, respond to the request for the special use permit.@

Angela Beeker - AMr. Chairman there are also some standards that relevant to the special use under 200-70, under powers and duties of the Board of Commissioners, um, A-6, and then little a through f, um, if you flip over just a couple pages past, one page past where you were reading, 200-70, and look down at the bottom number 6, before a special use permit is issued you have to make the findings with regard to what=s on the next page. So, I just didn=t know if you want to look through those to see if there are any of those also.@

Chairman Hawkins - ADo I think basic, uh, if I=m at the same place you are if, uh, if at any time after the permit has been issued the finds the conditions imposed, those, are those the ones you=re looking at.@

Angela Beeker - AUm, I was referring to, it says before any use permit is issued the Board shall make written findings certifying compliance with these specific rules governing the individuals special use and that satisfacture, satisfactory provision and arrangement has been made concerning the following where applicable, a is satisfactory ingress and egress, b is off street parking where required, c is utilities if, you know, to the extent these are applicable, buffering, d, buffering with reference to type, location and dimensions. E, playgrounds, open spaces, yards, access ways and pedestrian ways and f, building and structures with reference to location, size and use.@

Chairman Hawkins - ADoes any Board member see any of those that are applicable, uh. That, uh, that satisfactory provisions have not been made concerning those? Certainly the ingress and egress problem that, that you raised a question on as far as locking of the gate I think is a different, uh, issue than what we deal with, you know in here, uh, uh, I think it=s a valid point but I=m not sure it=s a, part of this, uh, of this dialogue here. Uh, parking is, is non-applicable, nor utilities. Uh, playgrounds, uh, I don=t think there=s any other buildings and structures up through there. Any, any other thoughts or comments on that particular section?@

Commissioner Baldwin - AHow do we, uh, how do we feel about the buffering with, uh, with, uh, respect to location and dimensions.@

Chairman Hawkins - AOkay, you wanna have some discussion on that particular aspect, Item D.@

Commissioner Baldwin - AI think so.@

Chairman Hawkins - AOkay.@

Commissioner Baldwin - AUm, again I feel like we=re just increasing the degree of non-conformity. They don=t meet the buffering standards now, and by granting this permit, we=re, uh, we=re reducing the buffer even further and eroding the standards that we=re already set.@

Chairman Hawkins - AWell I, I think that=s a, a valid point I, I think as, as, uh, Mr. Lapsley pointed out if the, if the piece of land, uh, or that we=re looking at is just the width of the buffer or smaller, uh, what you say is certainly germaine. But under the, um, the variance here, uh, the next paragraph down there seven then you start talking about can you secure reasonable return or make a reasonable use of your property. If it=s imperative that you have the, these additional places for waste material then, um, then you=re gonna preclude the u, the further use of the property up there as, as a mining operation.@

Commissioner Baldwin - AWell I guess that=s a, a question I, we closed the hearing as far as the questions and answers go but I think that=s one question I would like to, to see if the Board would be willing to ask Mr. Lapsley as far as expanding the site is it absolutely imperative to the operation itself that if, the permit, permit is not granted the operation cannot continue?@

Chairman Hawkins - AWe haven=t closed the hearing so I think Mr. Lapsley can still respond to that.@

William Lapsley - AWell I, I, I guess, if I understand your question, what would be the condition if this special use permit, for this expanded area was not granted. Uh, if that was the case and he was not allowed to, to move his sediment basin it would have to stay where it is, and, uh, would seem to me that he would have to truck off, uh, the material that=s waste material cause there=s not, there=s no room to mound it up within that existing permitted area. Uh....there=s this, this area=s, is currently within the permitted area by the state, that has a sediment basin and has the spoil area for his waste material. So if, if he cannot change and move as we applied, the sediment basin would still have to stay. I mean the state mining permit would require that. And so he would have to try and start mounding up the material here but that would eliminate his current parking area and where his truck turns around to load the materials so it would seem to me that, that he would be forced to take that spoil material and either try and find a way to, to pack it back into the hillside or truck it off, and I, to, to me if he wants to continue his mine operation he can=t, he can=t put it up against the rock face where he=s getting the materials so it would seem to me he would have to truck it off. And I, you know, I don=t know whether that would add probably two or three maybe more trucks a day, I don=t think it would add any 500 but@

Commissioner Baldwin - ASo.@

William Lapsley - Acertainly add, he=d have to truck it to another site somewhere off site to dispose of it unless he was able to negotiate with the neighbor, Mr. Anderson or somebody else to, to deposit the material there.@

Commissioner Baldwin - ASo it could be that, that if we don=t go with the permit, then we may be increasing, uh, truck traffic.@

William Lapsley - AI...I don=t, I think so, I think@

Commissioner Baldwin - AAs a result because he=s gonna truck it off site.@

William Lapsley - AHe would have to...mining operation the way I, I would see it. Now how far, it might, he may not as I say he may, he may be able to, as I would understand the state mining permit once you take it outside of this permitted mining area it=s not a mining issue anymore. Now it=s just a@

Commissioner Baldwin - AFill.@

William Lapsley - Aa problem he has to deal with if he disturbs more an acre. Where he puts it he=s gotta have an erosion permit and all those sorts of ... so he, it may be possible that he negotiates something with a neighbor, and he didn=t get the trucks out on Hoopers Creek Road but it, if the neighbors didn=t want him to put it there, then he would have to increase his traffic onto Hoopers Creek Road.@

Angela Beeker - AMr. Chairman under that general standard, um, I think the Board needs to look at the buffer that is proposed and determine if that under that general standard that is adequate, taking into consideration the, um, topography and the distance from, of the buffer. So, on one of the expansion areas there=s 120 feet of buffer left, and on the other side the smallest looks like 110 feet of buffer left, so under that general standard now you would need to determine whether you feel like what is left is an adequate buffer regardless of that 500 foot standard. It=s, it=s a different consideration under that general standard.@

Chairman Hawkins - AAny, any thoughts on, uh, on that particular issue as far as, uh, the adequacy of the remaining buffer? Any, any@

Commissioner Baldwin - ASo we=re gonna have to make a finding if we=re gonna chew into the 500 that what is left is adequate.@

Angela Beeker - AI will have to when I draw the order@

Commissioner Baldwin - ABased on specific reasons.@

Angela Beeker - Acorrect. I will have to make a finding that the buffer that is left is adequate, is sat, satisfactory, buffering with reference to type, location and dimensions. Under that general standard that=s@

Commissioner Baldwin - ASo if we=re gonna grant this permit we=re gonna have to make a finding that the buffer that=s left is adequate.@

Angela Beeker - AThat=s correct.@

Commissioner Baldwin - AIn this case, in this case.@

Angela Beeker - AIn this case. That=s correct. And, there really aren=t a whole lot of standards to guide you as to whether it=s adequate or not. It=s up to your discretion.@

Chairman Hawkins - ABecause I, I think that the essence of this is that you know, you=re really what you=re looking at for the adequacy of the buffer is the adequacy around a sediment pond and a, and a fill area. You know rather that the, further up on the, uh, quarry because it=s back in the area that=s already non-conforming. Is that. Any other discussion, the Board ready to vote on this? You want more data, you want. Bill, do you have any thoughts?@

Commissioner Moyer - AI, with respect to the buffering issue the way I would phrase it is that under, under the circumstances in this case, not necessarily that it=s adequate, but that satisfactory provision has been arranged based on what they=ve started with and based on the expansion that=s occurring. That=s what I=d be willing to say with respect to the buffering. And I=d be willing, uh, I=d be willing to move, you wanna move, motion now or do you want to go out of the public hearing?@

Chairman Hawkins - AWell, let me see if everybody=s got all the discussion done they want. Do we need to move out of public hearing before we vote on it?@

Angela Beeker - AOnce you move out you can=t ask any more questions. You can still...discuss it, but, but you just can=t take in anymore information.@

Karen Smith - AUm, I wondered if they should take action before they discuss the variance. Or if they should.@

Angela Beeker - ARight. I was gonna say the same thing but they=re just talking about whether to close the hearing or not.@

Chairman Hawkins - AThen I move we go out of public hearing then. All those in favor of that motion say aye.@

Commissioner Baldwin - AI, I didn=t hear the motion I was trying to secure this chair.@

Chairman Hawkins - ADo you, equipment problems?@

Commissioner Baldwin - AYes sir I did.@

Chairman Hawkins - AUh, it was just move to go out of public hearing so we won=t hear any more questions and.@

Commissioner Baldwin - AOkay.@

Chairman Hawkins - AAll those in favor of that motion say aye.@

AAye@ in unison.

Commissioner Moyer made a motion to approve the special use permit and deal with the variance separately. Commissioner Baldwin clarified that the fencing is a separate issue. All voted in favor and the motion carried. Chairman Hawkins directed staff to bring that back as a finding.

With respect to the variance and the fencing, Commissioner Moyer stated he would prefer to see the at risk part of the operation fenced. He did state that he realized such a request went beyond the Board=s authority, and that it would have to be to the petitioner=s agreement. There followed discussion on what the Board could do to facilitate fencing areas other than the area within the Board=s jurisdiction. Karen Smith reminded the Board of the findings that have to be made to grant a variance. A compromise would have to be tied to those findings.

Following additional discussion, it was the consensus of the Board to have staff work on some additional options for the Board, and bring those options back at the next meeting.

IMPORTANT DATES

Chairman Hawkins reminded the Board of some dates that the Board came up with at their retreat. He stated that there would be a presentation on Outcome Based Budgeting on February 3^rd. The Regional Water Agreement will be revisited at the Board=s March 3^rd meeting. The Human Services Building will appear on the agenda for February 3^rd. On February 19^th the Board will have a presentation on facility needs for the Animal Control Ordinance.

Chairman Hawkins reminded the Board that at the retreat, there had been a lot of discussion on the Comprehensive County Land Use Plan. Mr. Willett indicated that he would work with the county on a procedure for that Plan. Chairman Hawkins requested that Commissioner Baldwin work with Mr. Willett on setting up a community visitation on the Plan. Commissioner Baldwin stated that he would be glad to work on that.

Chairman Hawkins also reminded the Board of the upcoming holiday celebrating the birth of Martin Luther King Jr. He stated that there would be some activities at Blue Ridge Community College on that morning.

David Nicholson requested the Board set a date for a public hearing to establish road names. He made one addition to the list - the old name APheasant Ridge@ to be changed to AOld Logging Trail.@

Staff recommended the public hearing be set for February 19, 2003 at 11:00 a.m.

Commissioner Hawkins made the motion to set the public hearing for Wednesday, February 19 at 11:00 a.m. All voted in favor and the motion carried.

Mr. Nicholson stated that all future public hearings for road names would be heard on a quarterly basis.

David Nicholson requested the Board set a date for a public hearing on address and number changes. He recommended the public hearing be set for February 19, 2003 at 11:00 a.m.

Commissioner Hawkins made the motion to set the public hearing for Wednesday, February 19 at 11:00 a.m. All voted in favor and the motion carried.

Mr. Nicholson mentioned that January 22^nd would be the Annual Employee Longevity Awards Luncheon. He invited all the Commissioners to attend that Luncheon.

There had been some discussion on a workshop for facilities. It was the consensus of the Board to plan discussion on that following their meeting on February 3^rd.

Mr. Nicholson questioned whether the Board wished to schedule a public input session on the Weapons firing ordinance. It was the consensus of the Board to wait until seeing the draft of the ordinance before scheduling that public input session.

Mr. Nicholson informed the Board that they would be invited to a meeting on mental health reform tentatively scheduled for the evening of March 6^th. They are proposing to bring in several people from across the region to hear the presentation on the local business plan.

Chairman Hawkins noted that he had spoken with Mr. Nicholson about reorganizing the material in the agendas. He stated that when possible, several items would be put onto the consent agenda to allow the Board more time for discussion during the meetings.

CANE CREEK WATER & SEWER DISTRICT - no business

CLOSED SESSION - none

There being no further business to come before the Board, Chairman Hawkins made the motion to adjourn the meeting at 12:43 pm. All voted in favor and the motion carried.

Attest:

Elizabeth W. Corn, Clerk to the Board Grady Hawkins, Chairman