MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON FEBRUARY 2, 2004

The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.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, Public Information Officer Chris S. Coulson, Fire Marshal Rocky Hyder, and Finance Director J. Carey McLelland. Deputy Clerk to the Board Amy Brantley was present through nominations.

CALL TO ORDER/WELCOME

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

PLEDGE OF ALLEGIANCE

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

INVOCATION

David Nicholson gave the invocation.

DISCUSSION/ADJUSTMENT OF AGENDA

Chairman Hawkins requested that item 1. under Important Dates be pulled – “Set a Public Hearing on Rezoning Application #R-03-06 – Conomo Properties”. A letter had been received withdrawing the request.

Chairman Hawkins also requested that the Board add as item #3 under Update on Pending Issues – “Vehicle Leasing v. Purchasing”.

Commissioner Moyer requested that a Discussion Item be added – “Setting a workshop to discuss in detail the distribution of sales tax – Ad Valorem v. Per Capita.” Following some discussion, it was decided to place this item under “Important Dates” on this agenda.

David Nicholson requested that the Board move item “B – Tax Collector’s Report” from consent agenda and place it under Staff Reports as A-1.

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

CONSENT AGENDA

Per above the Tax Collector’s Report had been pulled and moved to a Staff Report.

Chairman Hawkins requested that item G – “Proclamation – Etowah Lions Day” be pulled for some discussion. Commissioner Baldwin requested that item D – “Update on County Comprehensive Plan and Other Major Planning Initiatives” be pulled for some discussion.

Chairman Hawkins made the motion to accept the consent agenda as presented. All voted in favor and the motion carried.

Minutes

Draft minutes were presented for the Board’s review and approval of the following meeting(s):

January 5, 2004, regular meeting

Tax Collector’s Report

This was pulled from the consent agenda and added as a Staff Report so that Terry Lyda and Darlene Burgess could address the Board with this annual report.

Request for Improvement Guarantee for Bloomingdale Subdivision

Mr. Ed Holland had submitted an application for an improvement guarantee for a proposed subdivision he is developing known as Bloomingdale. The subdivision is being constructed off Jackson Road in the Hoopers Creek area and will contain 14 residential lots. The Planning Board granted conditional approval of the combined Master Plan and Development Plan for the project on August 20, 2003. The improvement guarantee is proposed to cover remaining road improvements consisting of the installation of asphalt paving for all roads within the project.

Pursuant to Section 170-38 of the Henderson County Code, a developer may, in lieu of completing all of the required improvements prior to Final Plat approval, post a performance guarantee to secure the County’s interest in seeing that satisfactory construction of incomplete improvements occurs. One type of permitted guarantee is the deposit of cash or certified funds. Mr. Holland (the developer) intends to deposit with the County such funds in the amount of $27,312.75, which includes the cost of the remaining improvements ($21,850.20) as well as the required twenty-five percent contingency ($5,462.55). The proposed completion date for the improvements is October 15, 2004.

A draft Performance Guarantee Agreement was presented for the Board’s consideration. If the application is approved, the developer must deposit with Henderson County cash or certified funds in accordance with the terms of the Agreement. Once the County receives such funds, the (Assistant) County Attorney must certify the Agreement as to form prior to its execution by the Chairman and the developer.

The County Manager recommended that the Board approve the application for an improvement guarantee for Bloomingdale subdivision, subject to the developer depositing cash or certified funds with the County in accordance with the terms of the draft Performance Guarantee Agreement.

Update on County Comprehensive Plan and Other Major Planning Initiatives - This item was pulled from the consent agenda for some discussion.

Financial Report – December 2003

Cash Balance Report – December 2003

These reports were presented for information and consent approval by the Board.

Non-departmental expense includes annual property/liability insurance premiums paid to the NCACC Risk Management Pools. The remaining $153,048 in expense will be allocated out to all departments prior to fiscal year end.

The $5,108 YTD deficit in the 911 Emergency Communications Fund is temporary due to a reversal of an accounting entry made at the end of the previous fiscal year. This fund will show a positive YTD net revenue position beginning in January 2004.

The $1,250 YTD deficit in the CDBG-Scattered Site Housing Project, the $3,142 YTD deficit reported in the Mud Creek Watershed Restoration Project and the $6,698 YTD deficit reported in the Mills River Sewer Project is temporary due to a timing difference in the expenditure of funds and the subsequent requisition of funds to reimburse these expenditures.

The County Services Building Project deficit is due to architectural fees, demolition/abatement and utility line relocation work performed at the former Carolina Apparel Building. It is anticipated that these costs will be recouped from financing proceeds for the project in 2004.

Henderson County Public Schools Financial Report – December 2003 – This item was pulled from the consent agenda for some discussion.

Proclamation – Etowah Lions Day – This item was pulled from the consent agenda for some discussion.

DISCUSSION of Consent Agenda items:

Update on County Comprehensive Plan and Other Major Planning Initiatives (item D)

Staff had provided the issue update which summarized the tasks related to the CCP and the other major planning initiatives that occurred over the past month. The update also included anticipated actions for the coming month. This information was provided for information only, no action was required.

Commissioner Baldwin asked the Planning Director and the County Manager about establishing the dates for the action steps. He stated that the Strategic Plan and the Comprehensive Plan need to be in harmony with each other.

Mr. Nicholson stated that he and Selena Coffey had been working on the assignments and dates for the actions steps. They should have it ready to present to the Board at the next Commissioners’ meeting. Staff will pull the calendar and review it with the Board of Commissioners to see if the Advisory Committee and the Planning Board and Staff are on track and whether the Board of Commissioners has any further direction for any of these folks.

Proclamation – Etowah Lions Day (item G)

The Etowah Lions Club will be 50 years old this February and plans to celebrate that event on Saturday, April 3, 2004. They requested the Board proclaim that day as Etowah Lions Day.

Chairman Hawkins wanted to mention the Proclamation rather than just take care of it as part of the consent agenda. He stated that the Board was happy to Proclaim Etowah Lions Day.

Chairman Hawkins made the motion to accept item D & G in the consent agenda. All voted in favor and the motion carried.

NOMINATIONS
Notification of Vacancies

The Board was notified of the following vacancies which will appear on the next agenda for nominations:

1. Solid Waste Advisory Committee – 1 vac.

Nominations

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

1. Agriculture Advisory Board – 1 vac.

Chairman Hawkins nominated Garrett Griffin to fill this vacancy. Bill Moyer nominated Wayne Carland. The Clerk will poll the Board at the next meeting.

2. Apple Country Greenways Commission – 1 vac.

Commissioner Messer nominated Babs Kuykendall. There were no other nominations. Chairman Hawkins made the motion to accept Ms. Kuykendall by acclamation. All voted in favor and the motion carried.

3. Downtown Hendersonville Inc. – 1 vac.

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

4. Equalization and Review – 6 vac.

Chairman Hawkins nominated Jon Laughter, Charles Porter, and Ray LeStrange for reappointment. There were no other nominations at this time. Chairman Hawkins made the motion to accept these three by acclamation. All voted in favor and the motion carried.

5. Fire and Rescue Advisory Committee – 1 vac.

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

6. Henderson County Transportation Advisory Committee – 4 vac.

At the January 21 meeting, the Board appointed by majority vote the following members to the Transportation Advisory Committee (9 members):

Chip Gould, Jack Lynch, Flaughn Lamb, Jim Crafton, and Gary Mintz (5 vote each, or unanimous).

Erica McArthur, Tom Looby, Virgil McClure, and Javonni Burchett (4 votes each).

At that time the following had received three votes each. The Clerk polled the Board as a tie-breaker because we had five nominees for four vacancies. Below are results of that vote:

Ron Schwartzel 3 votes

Renee Kumor 5 votes, or unanimous

John Antrim 4 votes

Paul Stepp 3 votes

Rick Merill 3 votes

Renee Kumor and John Antrim were appointed at this time. The Clerk will poll the Board at the next meeting and each Commissioner can vote for two of the following three: Schwartzel, Stepp, or Merill.

7. Henderson County Zoning Board of Adjustment – 1 vac.

Chairman Hawkins nominated Gary Griffin. Chairman Hawkins made the motion to accept Mr.Griffin by acclamation. All voted in favor and the motion carried.

8. Historic Courthouse Corporation – 7 vac.

Chairman Hawkins nominated Judy Abrell, Ruth Birge, and Argie Taylor.

Commissioner Young nominated Dr. George Jones and Theron Maybin.

Commissioner Messer nominated Ron Stephens and Spence Campbell.

Commissioner Baldwin nominated Tom Orr.

We have eight nominees for seven vacancies so the Clerk will poll the Board at the next meeting for these appointments.

9. Industrial Facilities and Pollution Control Financing Authority – 2 vac.

Chairman Hawkins nominated Herb Young for reappointment. Chairman Hawkins made the motion to accept Mr. Young by acclamation. All voted in favor and the motion carried. One vacancy was rolled to the next meeting.

10. Juvenile Crime Prevention Council – 3 vac.

Commissioner Baldwin nominated Amy Beth Griffin for position # 12. Chairman Hawkins nominated Blair Lamb for position # 26. There were no other nominations at this time. Chairman Hawkins made the motion to accept both Ms. Griffin and Ms. Lamb by acclamation. All voted in favor and the motion carried. One vacancy was rolled to the next meeting.

11. Nursing/Adult Care Home Community Advisory Committee – 8 vac.

Chairman Hawkins nominated Suzanne Camp-Goodman and Ana-Jo O’Brien to fill two of the vacancies, positions #4 and #5. There were no other nominations at this time. Chairman Hawkins made the motion to accept these two nominees by acclamation. All voted in favor and the motion carried. Six vacancies were rolled to the next meeting.

12. Planning for Older Adults Block Grant Advisory Committee – 15 vac.

According to the Charter for this Committee, Mr. Nicholson serves as the lead agency for these funds. The Committee by rights is appointed by the Board of Commissioners but reports to David Nicholson. He has been taking applications and still has a few openings. The law strongly recommends that a third of the committee be made up of older adults. Mr. Nicholson had three people to recommend in that category: Calvin Titus, Martha Sachs, and Babs Kuykendall.

Tonight the Board appointed Ms. Kuykendall to the Greenways Commission and she currently serves on the Board of Equalization and Review. Mr. Nicholson asked what the Board’s pleasure was regarding Ms. Kuykendall. They were in agreement to go ahead and appoint her and let her make her own choice which two of the three to serve on.

There are designated positions for the agencies and Mr. Nicholson recommended the following:

1. Joan Tuttle - Land of Sky – Area Agency on Aging

2. Karen Smith - Henderson County Council on Aging

3. Mae Harter - Department of Social Services

4. Ann Skinner - Sheriff’s Department

5. Pat Strickland – Blue Ridge Community College

6. Lee Anne Tucker – Senior Volunteer Program

7. Jodi Grabowski – Park Ridge Home Health

8. Barbara Hinshaw – Alzheimer’s Association

9. Javonni Burchett – Apple Country Transportation

Chairman Hawkins nominated the nine persons for the designated positions and Calvin Titus.

Commissioner Moyer nominated Martha Sachs and Barbara Kuykendall.

Chairman Hawkins made the motion to accept these eleven nominees by acclamation. All voted in favor and the motion carried. Two older adult positions and one public position still remain vacant.

13. Recreation Advisory Board – 4 vac.

Commissioner Messer nominated Corum Smith, Jeff Donaldson, Roy Huntley, and Wally Sneed for reappointment. There were no other nominations at this time. Chairman Hawkins made the motion to accept these four by acclamation. All voted in favor and the motion carried.

14. Senior Volunteer Services Advisory Council – 1 vac.

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

Henderson County Planning for Older Adults Block Grant Advisory Committee

This item was addressed by Mr. Nicholson as stated above.

TAX COLLECTOR’S REPORT

Terry F. Lyda, Henderson County Tax Collector, appeared before the Board to submit the Tax Collector’s Report dated February 2, 2004 – Report of Unpaid Taxes that are Liens on Real Property as required by NCGS 105-369(a). Please see copy of that report attached as a part of these minutes.

Chairman Hawkins made the motion to approve the Tax Collector’s request regarding advertisement of Tax Liens. All voted in favor and the motion carried unanimously.

TRANSPORTATION ISSUES

The purpose of this agenda item was to update the Board on two transportation issues. The first was the report from the French Broad River MPO on public transit. The other issue is the response from the MPO staff concerning the Board’s inquiry if all of Henderson County could be included within the MPO boundaries. A copy of the report from the MPO on public transit and the letter concerning the boundary expansion were presented for Board review and consideration.

Mr. Nicholson had discussed the report from the MPO on the public transit system with representatives from the MPO, NCDOT and WCCA for the past several days. There seems to be interest at NCDOT to assist us by providing one year of transition funding. At this point, he had no confirmation on the funding.

As for the MPO boundaries, he stated he appreciated the quick response to his inquiry from the MPO staff and unless otherwise directed by the Board, he will request that this item be placed on their next agenda.

Mr. Nicholson had sent a letter to Dan Baechtold, MPO Coordinator, asking them whether it was possible to expand the boundaries of the MPO out to cover all of Henderson County. The next day Mr. Baechtold responded back to Mr. Nicholson that the memorandum of understanding for the MPO charges the Transportation Advisory Committee with the responsibility for review and approval of changes to the MPO boundary. Since there are no additional local governments to be added to the boundaries, they wouldn’t have to do anything associated with redoing the memorandum of understanding. There are certain federal guidelines with the establishment of the boundaries urban in nature or becoming urban in the next twenty years. Mr. Baechtold stated this determination is a local decision. He asked if Mr. Nicholson wished to have this placed on the agenda for the technical committee (Mr. Nicholson serves on) and he stated that he would.

Mr. Nicholson stated that unless the Board directed him otherwise, he would make that recommendation at the TCC meeting on February 19.

No action was required at this time.

Mr. Nicholson then addressed the public transit issue. There are some changes because of Henderson County’s inclusion in the Asheville Area Metropolitan Statistical Area, designated by the US Census Bureau. This changes how our public transportation system will be funded in the future under the new scenario. Mr. Nicholson stated that the rules and regulations we would have to meet are rather overwhelming to become a direct recipient of federal funds for this. Federal monies do not cover any type of operational costs. Currently our program is funded mostly by state funds which can cover operational costs.

Mr. Nicholson stated that we need some help in putting this program together and understanding it better. He recommended the MPO staff, as part of their planning function for Henderson County, to do a report. Mr. Nicholson had provided that report for the Board’s review. He reviewed that report, mentioning some highlights of it. There was some discussion that the municipalities should help fund this effort, especially if the buses run inside their municipality. There was some discussion that Henderson County could become a direct recipient of the program or Henderson County could contract with the City of Asheville Transportation Services to provide public transportation in our community. Because of the fact that the MPO was smaller than 200,000 people before it was expanded, the City of Asheville got additional state monies so they won’t be getting anymore. The City of Asheville is now also looking at their budget as they are looking for several hundred thousands of dollars that will change within their budget. We’re not the only ones going through this transition period. There is a total of 40 systems in the state of North Carolina who are going through this same issue right now of how to fund public transportation because we won’t get state funds anymore. Mr. Nicholson stated we will get some continuing monies through the end of September. Henderson County was actually transferred from a rural service to an urban service which technically means that we are no longer eligible for the NCDOT Public Transportation Division transportation funds. In the past those funds have covered the majority of our costs. Henderson County has been under transitional fund money for the current fiscal year.

Mr. Nicholson explained that one possibility to look at this coming year to see how to fund the program is to go back to the State and ask for an additional year of transition funds. If we cannot get any additional transition funds we could work with the Asheville Transit Authority to bid out the service or we could actually contract with the Asheville Transportation Services to provide the services here. One last alternative would be for Henderson County to run whatever level of service we wish to provide with local funds.

Mr. Nicholson didn’t feel very hopeful about getting any additional transition funds. He suggested that this item be placed on the agenda for LGCCA, a discussion about the value of the program and whether or not all the local government units would step up to the table and provide some portion of the funding.

Following much discussion, it was the consensus of the Board for the Chairman to bring this issue up at the next LGCCA meeting, on February 17, 2004.

INFORMAL PUBLIC COMMENTS

1. David White – Mr. White addressed the issue of ridership and service for the public transit in Henderson County. He distributed a hand-out which listed the most popular stops, some demographic information regarding ridership, as well as information about the three routes (red route, white route, and blue route). The routes cover 58 miles altogether. Each route takes an hour to run so there are constant routes all day long. This system was recognized by the NCDOT as the most effective rural system in the State of North Carolina last year, based on ridership per mile.

Mr. White stressed that Apple Country offers a high level of personalized service to elderly residents of the county that are not offered by other systems. He thanked the Commissioners for supporting this program through the years and thanked them for starting the process of looking at what can be done next to continue to provide transportation services.

2. John Antrim – Mr. Antrim stated that he had been involved in this operation since it started. He has a public transportation background and stated that this program has been a real success. He would like to see more frequent service, more often than hourly.

3. Cheryl James – Ms. James spoke in favor of the public transportation for people who take the bus to their jobs, people who take it to shop because that stimulates our economy, and residents who need the transportation to get to doctors, hospital, and pharmacies. Public transportation helps the environment and conserves energy. To help with funding of the transportation service, she suggested raising the cost of the monthly pass from $10 to $15 and the Asheville transfers from $0.75 to $1.00.

4. Francis Robinson – Mr. Robinson stated that he has been using the public transit since it started and he uses it five days a week. He stated it would be a sad thing to shut it down.

5. Greg Walker – Mr. Walker stated that over the last year WCCA and Apple Country Transportation had provided to the YMCA a variety of services that help the YMCA deliver services to children. They utilize the bus/vans through their summer day camp operations which move 100 children, 40% of which are scholarship children that never have opportunities to go to other recreational outlets. Throughout the course of the school year they utilize the vehicles for an afterschool program that services two schools that again is serving low income children that may not get to the YMCA and may not be involved in an afterschool program. This past year they provided transportation to over 100 athletes for a marathon from the start to finish point. This helped address overcrowded parking at the marathon. For the past 13 years the YMCA has depended daily on WCCA to provide transportation for many of their programs. They are currently a bus stop on the route. The transportation system not only impacts the lives of the elderly in our community but also the lives of the youth and teens in our community.

6. Tanya Blackford – Ms. Blackford is executive director of Mainstay. She stated that the bus system is a necessity to the people Mainstay serves. It is critical to help them get to jobs. There is a public transit bus stop right in front of the shelter.

7. Barbara Stanley – Ms. Stanley is the Director of Nursing with the Department of Public Health. In her 26 plus years there transportation has been an issue that has been a major unmet need through the years. It has been exciting to see Apple Country begin the public transportation program. They have served the clients of the Health Department. The Health Department is a bus stop on their route. This had been an unmet need and she applauded the Commissioners for supporting this service. She applauded WCCA for stepping up to the plate as they have the past few years to put this program in place. She hopes that we will be able to find a solution to keep them in our community.

8. Chip Benning – Mr. Benning stated that the public transit fulfills a real need in the county. We are growing so quickly. He expressed that to end public transportation now would be a big mistake. He has been involved since almost the beginning. He stated that it is rare to have an empty spot on the bus now. He stated that there are handicapped people who ride the bus who don’t have another choice. He realizes that there are a lot of demands on our county taxes but feels that this should be a priority.

MEDIACOM FRANCHISE RENEWAL

Presented for a second reading at a regularly scheduled meeting was the Ordinance which affirms the current franchise and indicates the Board’s intent to proceed with the renewal on an informal basis, while reserving the County’s right to invoke the formal process at any time.

Following discussion, Chairman Hawkins made the motion to approve the second reading. All voted in favor and the motion carried.

TAX RELEASES

Six tax release requests were presented which had been reviewed by the County Assessor and as a result of that review, it was the opinion of the Assessor that the findings were in order and that the request for releases should be denied. Also provided was a Response in Opposition to Michael Edney’s Petition for Release/Refund.

Attorney J. Michael Edney represented the petitioners which are two homeowners associations. He stated that none of the facts are in dispute.

Mike Edney’s Petition for Release/Refund:

#1 Livingston Farms Home Owners Association

c/o Paramount Property Management Co

P.O. Box 59

Hendersonville, NC 28793

Subject Property: 99-69206, 99-69207, 99-69208, 99-67537, 99-69010,99-68979, 99-67216,

99-70455, 99-67500, 99-67217

Livingston Farms is a series of developments by Windsor/Aughtry in northern Henderson County, in the Town of Fletcher. The development consists of The Cottages, The Reserve and The Meadows. All are under the umbrella homeowner association of Livingston Farms.

The developer, Windsor/Aughtry is a South Carolina corporation and is represented by the law firm of Long, Parker, Warren & Jones, PA in Asheville, NC. This firm oversees all of the real estate closings etc. affecting Windsor/Aughtry.

Apparently, on December 30, 2002, the developer executed a deed transferring the common areas within the development to the homeowners association. Neither the developer nor the law firm notified any homeowner or the management company that this was about to occur. Also, neither any homeowner nor the management company was notified of this transaction after it occurred. The transaction did not come to the attention of the management company until tax bills were mailed in the fall of 2003.

Homeowner Association Property is exempt from property tax … if the exemption is timely filed. The Livingston Farms exemption was not timely filed because Livingston Farms was not aware it owned any real property.

#2 Saint Johns Commons Homeowners Assoc.

c/o Paramount Property Management Co

P.O. Box 59

Hendersonville, NC 28793

Subject Property: 99-59538, 99-61500, 99-59549, 99-59548, 99-61499, 99-59550

Saint Johns Commons is a development by Windsor/Aughtry in northern Henderson County, in the town of Fletcher.

Apparently, on April 5, 2002 and again on December 30, 2002, the developer executed deeds transferring some common areas within the development to the homeowners association. Neither the developer nor the law firm notified any homeowner or the management company that this was about to occur. Also, neither any homeowner nor the management company was notified of this transaction after it occurred. The transaction did not come to the attention of the management company until tax bills were mailed in the fall of 2003.

Homeowner Association property is exempt from property tax… if the exemption is timely filed. The Saint Johns Commons exemption was not timely filed because Saint Johns Commons was not aware it owned this real property.

Stan Duncan’s Response – In Opposition to Michael Edney’s Petition for Release/Refund:

Livingston Farms Homeowner’s Association

On January 1, 2003 Livingston Farms Homeowner’s Association was the owner of record for ten parcels of real property. On February 7, 2003 the taxpayer was mailed notice of reappraisal value – one for each parcel. No appeal of the value or taxability of the property was received either informally or formally to the Board of Equalization & Review. The applicant first came forward upon receipt of the 2003 tax bills for the Town of Fletcher. Application for exemption was made and submitted on September 19, 2003. The application was denied for 2003 but approved for 2004.

NCGS 105-282.1(a)(2)d requires a single application for exemption for property owned by a nonprofit homeowners’ association as described in 105-277.8. That single application for all ten parcels should have been submitted during the regular listing period, which for calendar year 2003 was from January 1 through January 31, 2003. Upon the showing of “good cause” by an applicant, an application may be accepted after the close of the listing period. The defense claim that the application was not timely filed because the applicant was not aware it owned the property is not “good cause” and is without merit.

NCGS 105-348. All interested persons charged with notice of taxes. All persons

who have or who may acquire any interest in any real or personal property that

may be or may become subject to a lien for taxes are hereby charged with notice

that such property is or should be listed for taxation, that taxes are or may become

a lien thereon, and that if taxes are not paid the proceedings allowed by law may

be taken against such property. This notice shall be conclusively presumed,

whether or not such persons have actual notice.

The recent Court of Appeals ruling in the matter of Charles H. Taylor/Transylvania Tree Farms v Jackson County, regarding the removal of property from the present-use classification, centers on the failure of the property owner to timely meet deadlines for providing certain information necessary to the assessor to determine that the property continued to meet eligibility requirements. Deadlines, whether imposed by the county as in the particular case of Taylor, or by statute as in the subject case before us regarding exemption, must be timely adhered to. By statute, “an owner claiming an exemption or exclusion from property taxes must file an application … during the listing period.” January 31, 2003 was the deadline for making application for exemption.

Additionally, NCGS 105-380 restricts the governing body of a taxing unit from releasing, refunding, or compromising all or any portion of a tax except as expressly provided by statute. Any tax released, refunded, or compromised may be recovered along with the costs of bringing suit from any member voting in the affirmative to release, refund, or compromise the tax as levied.

Saint Johns Commons Homeowner’s Association

On January 1, 2003 Saint Johns Commons Homeowner’s Association was the owner of record for six parcels of real property. On February 7, 2003 the taxpayer was mailed notice of reappraisal value – one for each parcel. No appeal of the value or taxability of the property was received either informally or formally to the Board of Equalization & Review. The applicant first came forward upon receipt of the 2003 tax bills for the Town of Fletcher. Application for exemption was made and submitted on September 19, 2003 for five parcels. The application was denied for 2003 but approved for 2004. On January 20, 2004 a timely-filed application was approved for the unbilled parcel. (One parcel was not billed as it produced a tax bill of less than $1.00).

NCGS105-282.1(a)(2)d requires a single application for exemption for property owned by a nonprofit homeowners’ association as described in 105-277.8. That single application for all six parcels should have been submitted during the regular listing period, which for calendar year 2003 was from January 1 through January 31, 2003. Upon the showing of “good cause” by an applicant, an application may be accepted after the close of the listing period. The defense claim that the application was not timely filed because the applicant was not aware it owned the property is not “good cause” and is without merit.

NCGS 105-348. All interested persons charged with notice of taxes. All persons

who have or who may acquire any interest in any real or personal property that

may be or may become subject to a lien for taxes are hereby charged with notice

that such property is or should be listed for taxation, that taxes are or may become

a lien thereon, and that if taxes are not paid the proceedings allowed by law may

be taken against such property. This notice shall be conclusively presumed,

whether or not such persons have actual notice.

The recent Court of Appeals ruling in the matter of Charles H. Taylor/Transylvania Tree Farms v. Jackson County, regarding the removal of property from the present-use classification, centers on the failure of the property owner to timely meet deadlines for providing certain information necessary to the assessor to determine that the property continued to meet eligibility requirements. Deadlines, whether imposed by the county as in the particular case of Taylor, or by statute, “an owner claiming an exemption or exclusion from property taxes must file an application … during the listing period.” January 31, 2003 was the deadline for making application for exemption.

Mr. Edney had an affidavit from the Asheville Lawyer admitting that he never told the Homeowners Associations that they had released the properties to them. The developer had filed the deeds at the last hour.

Mr. Duncan agreed that there was no disputing the facts. The deed came through late in the calendar year 2002 so the Homeowners Associations were the legal owners as of January 1, 2003. The applications for exemption for 2004 have been approved so it will not be an issue this year. He stated that there was not good cause for showing why the application was late and he quoted NC law.

Following much discussion, Chairman Hawkins asked the County Attorney for legal advice. Mrs. Beeker stated that it is a three step process and further stated that the Statute only grants to the Board of E & R or the Board of Commissioners the authority to approve a late application. Mr. Duncan didn’t have that discretion so he had no choice but to deny the exclusion.

1. The Board must decide whether to approve the late application. That is a discretionary matter, the statute says “for just cause”. So it’s up to this Board to determine whether they feel like Mr. Edney has demonstrated just cause to approve that late application. If the Board decided, yes to approve the late application,

2. The next step would be to determine whether the property meets the three tests to be excluded. She assumed that it does because Mr. Duncan has already exempted it for 2004.

3. She felt a good argument could be made that at that point it does become an illegal tax because you would be taxing property that by statute is excluded from the tax base, if the other hurdles are met.

If the Board were to not approve the late filing of the application then the Board would have no choice

but to deny the request for release according to Mrs. Beeker.

Mr. Edney stated that as a matter of real estate law, the Associations don’t own the property because they

have never accepted delivery of the deed.

Chairman Hawkins stated that the Board should get an opinion from the County Attorney following her research of the issue before making any decision on this item. The Chairman asked Mrs. Beeker if she could research this and bring it back to the Board at the next meeting.

Recess

Chairman Hawkins called a brief technical break to change videotapes.

UPDATE ON PENDING ISSUES

211^th Home Coming

Chairman Hawkins stated that some of the staff had been coordinating a preliminary schedule of events to welcome the 211^th MP home. Currently the plan is to hold the event at about 9:00 a.m. one morning as soon as feasible after their return. It will be held in the Blue Ridge Mall Center Court. General Ingram, National Guard Commander, has been invited to help put on the program as far as mustering the troops in and out and dismissal from active duty. A number of Veteran’s Organizations have been contacted as well as the Public Schools. Dr. Burnham will provide a school band or two as part of the ceremony. There will be a reception for the troops in the mall after the welcoming home. Elected representatives have been invited as well as each municipality.

Howard Gap Road Waterline

The water situation is getting critical in the Howard Gap area where the groundwater is polluted. At the direction of the Board the County Manager has made some inquiries about getting the county involved. The City of Hendersonville has had some discussion as well as the State. We are now involved. Chairman Hawkins asked Mr. Nicholson to bring the Board up to date on this issue.

Mr. Nicholson has heard from Senator Tom Apodaca who had corresponded with the North Carolina Rural Center. Senator Apodaca asked Mr. Nicholson to call the Executive Director. He returned Mr. Nicholson’s call last Friday. They have a fund that is jointly shared by the Rural Center and the Division of Community Assistance. It is a separate pot of CDBG funds. The Rural Center has directed the Division of Community Assistance in Raleigh to set aside $400,000 of these funds toward this waterline. Mr. Nicholson corresponded with someone at the Division of Community Assistance in Raleigh who has indicated that the funds have been set aside for this project. These funds require a 10% local match; however, it is about a $635,000 - $640,000 project. The City has been working on this project for some time and they had located some underground storage trust fund monies. If the City proceeds with this line, the City would have to front the money and would hopefully get reimbursed over a period of time from the underground storage trust fund.

Mr. Nicholson asked for direction from the Board concerning the approx. $250,000 shortfall on this project. He reminded the Board that 42 low to moderate income homes would be served by the project. Mr. Nicholson reviewed the route of the waterline with the Board. The City had projected that it would take about nine months to run this line.

Chairman Hawkins suggested that the Board direct the County Manager to enter into a dialogue with the City Manager to proceed with this project so that Henderson County can apply for the grant, get this project moving and eventually recoup our monies and turn the line over to the City of Hendersonville.

VEHICLE PURCHASE – add-on

Chairman Hawkins stated that during the budget process the Board planned to purchase vehicles to replace some coming off lease. He asked the County Manager to update the Board on this.

David Nicholson had put a memo in each Commissioners box about the position we find ourselves in dealing with the law enforcement vehicle side of this project. He stated it is our intent to continue with the 13 non-law enforcement vehicles through what the Board set up in the budget, which was to purchase them and do a non-bank qualified financing.

Mr. Nicholson stated that what was put in the budget and what the Board agreed to in the budget was a plan to purchase the vehicles through a bank financing. He had learned that no formal bids were taken on the vehicles nor were they purchased off state contract. Last fall the Sheriff’s Department went out and sought local dealers to give them a quote for the vehicles. In talking to the Sheriff, it was his staff’s understanding that we were going to do a lease of the vehicles and then with little to no residual value at the end purchase the vehicles at the end of the lease which is commonly known as a lease with an option to purchase. That was their assumption. Mr. Nicholson stated that clearly we didn’t communicate very well to the staff up there about what the requirements were, maybe we should have taken a larger role in the purchasing project. He said we provided the Sheriff’s Department a copy of the purchasing policies when they first started looking at this so they did have that in their office. He stated that since we don’t have a purchasing agent, we require each department to do this themselves. We don’t have a staff person assigned to do this so we rely upon them to follow the procedures correctly.

Mr. Nicholson explained that last fall after taking the local quotes the folks at the Sheriff’s Department authorized Hunter’s Chevrolet through a letter to order the vehicles. After many discussions we are in a position that we have two alternatives: The Board could direct staff to go out to bid. We can go through a bid process. We can put a bid package together and put it out and see who wishes to bid the vehicles. However, one thing Mr. Nicholson felt the Board should consider is the fact of just leasing these vehicles this coming year. He felt that there is an issue on both the legal side of what we need to do legally and doing what’s right by Hunter Chevrolet because they did operate under a misconception but they did order the vehicles for the Sheriff’s Department.

Much discussion followed. A lease would need to be for three years as in the past, cost-wise, and without an option to purchase. There was some discussion about the valid bid process.

Mr. Nicholson stated more than once that he would take responsibility for this because it might be due to lack of communication. His job is to make sure that the Board’s policies are carried out. He needed some direction from the Board to know what to do next. He didn’t feel that anyone, Sheriff’s Department staff nor Mr. Nicholson’s staff were trying to go against the Board’s policy. His recommendation to the Board was to go ahead and lease these vehicles from Hunter Chevrolet.

Commissioner Moyer made the motion to adopt the County Manager’s recommendation and lease these vehicles in the same manner we have in the past and direct the County Manager to come up with a good purchase policy.

Commissioner Young stated if we were going to lease the vehicles he wants to see the lease.

Discussion of the motion included pros and cons of centralized purchasing as well as beefing up the purchasing process to stop this from happening again. Discussion followed whether to include all 19 patrol cars or to exclude the vehicles that could be sold on the open market.

Commissioner Moyer amended his motion to cover only the 19 police vehicles with Mr. McLelland developing the best financial package he can for us and negotiate with Hunter regarding the other four vehicles. A vote was taken and the motion carried three to two with Commissioner Hawkins and Young voting nay.

Chairman Hawkins asked Mr. McLelland to bring that back to the Board at his earliest convenience.

Mrs. Beeker reminded the Board of the remaining 13 vehicles which has now gone up to 18 vehicles. Financing is lined up so that if the Board wanted to approve the financing of the vehicles that are not for the Sheriff’s Department, the Board could do that tonight and staff could go ahead with that purchase. She told the Board that the prepared Resolution they have repeals the former Resolution and authorizes staff to finance $274,000 at 2.38%. To add the additional five vehicles it would need to be increased to $375,000. Direction was given to Ms. Beeker to see if we could get the five additional vehicles at the same interest rate and put this on the mid-month meeting agenda, February 18, 2004. The resolution will need to be revised.

After much discussion, Chairman Hawkins stated that the easiest thing to do at this time would be to roll this to the next meeting and if the bank wants to adjust their proposal the Board would consider it then.

Commissioner Baldwin asked that Mr. Nicholson tighten up our standard operating procedures and report back to the Board with same. He felt that we need to look at moving into centralized purchasing in the county.

IMPORTANT DATES

Chairman Hawkins mentioned that the Conomo Properties request had been pulled.

Set Public Hearing on Rezoning Application #R-03-06 (R-30 to C-2)

Conomo Properties, LLC, Applicant

The Board had received a letter from William G. Lapsley & Associates, P.A. dated January 29, requesting that this application be withdrawn from consideration by the Board of County Commissioners at this time. The applicant reserved the right to submit the same application for rezoning at a future date.

Set Public Hearing on Rezoning Application #R-03-03 (R-20 to R-15)

Camp Riley, Inc., Applicant

Mr. Todd Leoni, on behalf of Camp Riley, Inc., submitted an application requesting that the County rezone one parcel totaling 12.31 acres from an R-20 Low-Density Residential zoning district to an R-10 High-Density Residential zoning district. The parcel proposed for rezoning (the Subject Parcel) is located off Kanuga Road (SR #1127) on South Lakeside Drive (SR #1148) across from Lake Osceola.

The Henderson County Planning Board reviewed the application at its meeting on Tuesday, January 20, 2004. During the meeting, the applicant amended his application to request an R-15 Medium-Density Residential zoning district instead of the original request for R-10. The Planning Board voted to send the Board of Commissioners an unfavorable recommendation on the amended application requesting the rezoning of the Subject Parcel from R-20 to R-15. Before taking action on the application, the Board of Commissioners must hold a public hearing. Given the public notice requirements, the earliest regular meeting at which a public hearing could be held is on Monday, March 8, 2004.

The County Manager recommended that the Board of Commissioners schedule a public hearing on the rezoning application for a date on or after Monday, March 8, 2004.

Chairman Hawkins made the motion to set the public hearing for Monday, March 8, 2004. All voted in favor and the motion carried.

Set Public Hearing on Rezoning Application #R-03-04 (R-15 to C-4)

Mr. Leon Allison, Applicant

Mr. Leon Allison has submitted an application requesting that the County rezone a 7.76-acre portion of land from an R-15 Medium-Density Residential zoning district to a C-4 Highway Commercial zoning district. The parcel proposed for rezoning (the Subject Parcel) is located off Old Spartanburg Road.

The Henderson County Planning Board reviewed the application at its meeting on Tuesday, January 20, 2004, and voted to send the Board of Commissioners an unfavorable recommendation on rezoning the Subject Parcel from R-15 to C-4. Before taking action on the application, the Board of Commissioners must hold a public hearing. Given the public notice requirements, the earliest regular meeting at which a public hearing could be held is Monday, March 8, 2004.

The County Manager recommended that the Board of Commissioners schedule a public hearing on the rezoning application for a date on or after Monday, March 8, 2004.

Chairman Hawkins made the motion to set this public hearing on Monday, March 8, 2004. All voted in favor and the motion carried.

Chairman Hawkins stated that School Superintendent Burnham called and wanted to see if the Board could meet with his Board on March 30 to discuss school facilities. The Commissioners reviewed their calendars. Chairman Hawkins made the motion to set a special called meeting for March 30 at 5:00 p.m. here for a joint meeting with the Board of Education. All voted in favor and the motion carried.

There was discussion about setting a meeting to discuss tax distribution – ad valorem versus per capita. Following discussion it was decided to have this as an agenda item on February 18 instead of having a special called meeting.

DISCUSSION ITEMS – none

CANE CREEK WATER & SEWER DISTRICT – no business

CLOSED SESSION – none

ADJOURN

Chairman Hawkins made the motion to adjourn the meeting at 8:58 p.m. All voted in favor and the motion carried.

Attest:

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