MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON APRIL 22, 2004

The Henderson County Board of Commissioners met for a special called meeting at 6:00 p.m. in the Auditorium at West Henderson High School. This was a continuation of the special called meeting held on April 1, 2004, regarding Special Use Application #SU-03-01 and Related Variance Application #BOCV-03-01 – Motorcross Racing Facility.

Present were: Chairman Grady Hawkins, Commissioner Larry Young, Commissioner Bill Moyer, Commissioner Charlie Messer, Commissioner Shannon Baldwin, County Attorney Angela S. Beeker, and Clerk to the Board Elizabeth W. Corn.

Also present were: Planning Director Karen C. Smith and Zoning Administrator Brad Burton.

This is a verbatim transcript.

The term “members” refers to the members of the Board of Commissioners.

Chairman: “Ladies and gentlemen, I’d like to remind you that this is a continuation of the Quasi-Judicial proceeding to consider Variance Application #BOCV-03-01 and Special Use Permit Application #SU-03-01, submitted by Michael Edney on behalf of George Bennett. The subject of both the variance application and the special use permit application is whether a motor cross facility may be operated on that property located at 198 North Edgerton Road, Hendersonville, North Carolina. A Quasi-Judicial proceeding, much like a court proceeding, is a proceeding in which one’s individual rights are being determined. The proceeding will be conducted under the Henderson County Board of Commissioners’ Rules of Procedure for Quasi-Judicial Proceedings and those Special Rules of Procedure previously adopted by the Board of Commissioners for tonight’s meeting. A summary of the rules and procedure for Quasi-Judicial Proceedings and the Special Rules of Procedure are available for anyone who wishes a copy. I want to remind everyone that under these rules, not all persons here this evening will be allowed to speak. Parties will be allowed to call a maximum of 25 witnesses. If you are not a party or you are not called by a witness by one of the parties, you will not be allowed to participate in tonight’s proceedings unless you are called on by the Board of Commissioners. At the last meeting all the parties to the proceeding were identified, and Mrs. Corn, would you call out the names of the parties so we can see who is in attendance.

Mrs. Corn: We have Karen Smith, George Bennett, J. Michael Edney, Gerald Nash, Park Ridge Hospital, Ken Cobb, Dorothy Freeman, Frank Cox, Chuck Pressley, Janice Moore, Mark Wright, Douglas Dunlap, Dave Sherlin, James Owen and Bill Harper, Jr.

Chairman: I want to remind everyone that on April 1, the motion was made to close the application to become a party. All parties should have submitted a witness list and informed us of your major and minor witnesses. Again the parties are limited to five major witnesses with unlimited time to speak and 20 minor witnesses, who will be limited to three minutes each. The witnesses may not share their time with one another. If a party wishes to also be a witness, the party must be identified as one of the 25 witnesses. All persons who testify this evening, whether parties or not, must sign a written affirmation. Those persons called to testify will be required to give their affirmation to Mrs. Corn before they give their testimony. Mrs. Corn has blank affirmations for anyone who needs them.

Just an overview of the meeting this evening and where we stopped on April 1^st. The Petitioner will be allowed to complete the presentation of his case. After the Petitioner finishes, anyone else who has expressed a desire to be a party and who the Board has recognized as a party will then be allowed to present their evidence and call their witnesses. After all the evidence and testimony has been received, each party will be given the opportunity to ask questions or cross-examine any other party or witnesses testifying in the proceeding. Board Members may ask questions of any person testifying at any time during the proceedings. After the evidence is presented, the Board will discuss the issues raised and make a decision. The Board’s decision must be made in writing within 45 days of the close of the hearing. As the Board is aware of any information which any of the Board Members have already received concerning this proceeding, including site visits or discussion with anyone, it must be revealed at the beginning of the proceedings. If any of the Board members has received any other information concerning the issue to be considered in today’s proceeding, please state it at this time.

B. Moyer: We did get this letter. I did happen to read the first paragraph though, if you want to introduce it into the record?

Chairman: If you would.

B. Moyer: This is a letter from R. B. and Grace Smith to the Henderson County Board of Commissioners. Mrs. Corn has a copy of it.

Atty Beeker: OK.

Chairman: Any others? O.K. we will continue with our presentation of evidence, Mr. Edney.

M. Edney: Mr. Chairman, Commissioners, if I may, I begin by offering into evidence the GIS Map which is laying here in front of you folks. It was prepared by County GIS office today. We offer it, not for any specific purpose other than since at the last meeting, each Board member said that they had not been out to the property – to give the Board an overall view of the property. And you can see the two lines on it do reflect the distances from our property to Heritage Hills, which is the closest nursing home facility to the property. So, I would offer that at this time. And I don’t know if anybody would object to that. If not, I would ask the Commissioners to review it briefly now, and obviously later, look at it more.

Chairman: Can you pass it up to me? And, Mike, you say the furthest nursing home is the one indicated here is Heritage Hills.

M. Edney: My understanding, the closest one to it , yeah – would be Heritage Hills, and we have two measurements. One is from the door to where the motor cross actually is, and the other measurement is property line to property line.

Chairman: And what is that distance?

M. Edney: Property line to property line, I think is 2400 and some odd feet, but then actually from the door of the facility to the track was like 3500 feet.

Atty Beeker: Mr. Chairman, you may want to point out that if any of the parties at any time wish to object to anything that’s going on, they can come up to the mic and do so.

Chairman: Does everybody understand that?

L. Young: Y’all want to look at this a minute?

Members: Yes.

Atty Beeker: Mr. Chairman, is it the pleasure of the Board to admit this into evidence?

Chairman: Yes.

Atty Beeker: Is it too far away?

M. Edney: Can’t hear me or can’t hear them?

MICS MOVED A LITTLE CLOSER.

B. Moyer: Mike if you would. Why don’t you take the map and enter in the exact distances shown on the map, rather than your estimates so that we have the exact, if you don’t mind.

M. Edney: Let me do that. The exact distance from the property lines of Heritage Hills to Mr. Bennett’s property is 2,457.4 feet and from the track area to the front door of Heritage Hills would be 3,622.09 feet.

B. Moyer: Thank you.

M. Edney: Next, I would like to offer if I may Mr. Chairman, an aerial photograph, and I’ve got several copies of it. There was some discussion as to what the summertime vegetation looked like on the property and this gives a good representation of that, so I would offer that at this time.

Chairman: Anybody have any objection to that?

Atty Beeker: Mr. Chairman, I’m going to put this over here if any of the parties want to come look at it, and then I’ll make sure one of those gets back.

Chairman: Are these all the same pictures Mike?

M. Edney: They are, yes sir. And then, Mr. Chairman, at this point, I would like to re-call as a witness one of our major witnesses, Mr. Ben Sikorski, who will testify about some sound testing that was done on the property pursuant to a stipulation with the courts. I think for the record, we will remind Mr. Sikorski that he is still under oath from our last hearing.

Witness Sikorski: On Tuesday from 5:00 to 7:00, they allowed us to have approximately 15 to 20 motorcycles out there operating for sound tests. I’ve got a list of the ages of the riders and the types of vehicles they were riding as far as cc’s., variety – I think the smallest was an 80 cc and the largest a 450 - to give it a broad range so we have some of everything. Definitely did not bring out the small guns for this. This was – the loudest ones that we could get are out there. To have something to base this on, before we ever cranked the bikes, standing in the parking lot, with just the conversation and general outdoor noise, it was 65 decibels. With the bikes running on the track in the parking lot, about 76 decibels. 100 feet off the track, it dropped to 74 decibels. At 400 feet to 67. Down to 63 decibels at 800 feet. Went into -left the property at that point and went into Heritage Hills. The bikes were barely discernable and had a reading of 61 decibels was the peak reading. In Foxwood community, not discernable, 54 decibels was the noise level there. In Cannon Woods, 61 decibels. The county attorneys as well as some of the opposing parties were there to witness that the bikes were running, if there is any concern. In Grimesdale, again the bikes not even discernable, and a decibel reading of 62. Just some comparison readings we took on the way there and back. 200 feet off of I-26 was 76 decibels, which is higher than our decibel reading at 100 feet away. The gas station, Enmark gas station there on 25, 73 decibels, and just a UPS truck happened to be driving by, so we jumped out and got a reading as it went by – 83 decibels.

Chairman: What did you take the readings with – what kind of instrument?

Witness Sikorski: It’s a decibel reader, decibel meter. Anybody can pick them up. The one we used was a Radio Shack brand, just because it’s generic, easy to come by. Anybody can get one. I think Mr. Bennett actually brought that with him, if anybody wants to – is that in the parking lot Andy? Am I allowed to ask questions? I think we have it on site if anybody wants to inspect it or…

Chairman: Anyone have any questions.

C. Messer: Was that just one bike?

Witness Sikorski: No, that was 15 to 20 bikes.

C. Messer: Running…?

Witness Sikorski: Consistently.

M. Edney: What different size bikes were they?

Witness Sikorski: From 80’s to 450’s, 250’s, 125’s, 85’s, 400’s and a couple 80’s.

Atty Beeker: Did you want to submit that list into evidence?

M. Edney: Yeah, we can enter the list and the documentation showing the numbers, into evidence.

C. Messer: How many 450’s would you say was there, out of those 15 to 20 bikes?

Witness Sikorski: One 450, one 400, one, two, three, four, five, six. I think there was six 250’s, which is the 2-stroke version. 250-2 stroke, 450-4 stroke are the comparable bike. Those are both the biggest bikes out there. I can actually count it if I can get a pen real quick.

Chairman: Any objection to entering this into evidence?

M. Edney: There appears to be somebody in the audience.

Audience Member: CANNOT UNDERSTAND WHAT THEY ASK.

Chairman: We’ll get that in cross-examination.

Witness Sikorski: I’m counting eight 250’s.

Chairman: If you’ll give your report to Mrs. Corn, we’ll enter that into evidence.

M. Edney: Yeah, give your documents to the Clerk here in the middle. At this time, I would recall Mr. Halsey to discuss his findings and observations during the testing.

Chairman: O.K.

Witness Halsey: Good evening gentlemen:

Witness Halsey: I hope everybody is well. During the test period, I was particularly interested in the sound as it effected the Heritage Hills area and also over in Cannon Drive and Cannon Woods, and I went to the Heritage facility and stood for a period of 30 minutes in two areas, one right in front of the door that goes into the medical facility and then I spent about 10 or 15 minutes on the other side where many of those who live there come to have dinner in the dining facility, and I invited a gentleman, whose name is Abercrombie, who lives there, if he might step outside the door next to me and listen to see if he heard anything. And I can report to you emphatically that while I was there at Heritage Hills during that time when motorcycles were running, that any sound of a motorcycle was not discernable in any fashion whatsoever to my ears and also Mr. Abercrombie advised that he heard nothing. The only noise that I heard, and I was trying to hear as hard as I could, would have been the chirping of a bird and the operation of an air conditioning unit on top of the building. After I had concluded that, I went over to Cannon Woods and in the area of Florida Avenue, I believe it is on my chart, Florida Drive. I turned in because I noticed three or four people who, some of them I think are here tonight, and got out of my truck and stopped and asked if we might engage in some type of conversation about the noise level, and if my recollection is correct, I believe one individual asked me at the time when I stepped out of my truck, when the test was going to begin, and I told them at that time that the test had been underway for an hour. I suggested that they get in their car and come down to the facility and have a look for themselves, which I believe three of them actually did. But on that side of Brookside, there was no noticeable motorcycle noise. And then I went down into Cannon Woods, and several places where the road bends and at the end of the cul-de-sac, and I stayed there in each spot about 10 minutes, and there was no discernable motorcycle noise. And then I engaged a person who lives several houses, I believe, from one of the individuals who has been rather outspoken about the track, and I asked him if he heard any discernable noise that represented a motorcycle, and he said no. He could not, in fact, hear any noise. And the result of all this, is that I was so impressed by the fact that noise, I don’t believe is an issue, that I went to see Mr. Edney today, and suggested that we have those who are opposed occupy a position on a committee in the future and that perhaps we might be able to secure some type of a temporary permit, perhaps for a period of six months, during which time there would be no motorcycle riding. There would be no events that patrons would attend, and that the people who live in that area, could, in fact, have a committee and from that committee, we would decide, from them, not from us, but from them, we would decide what the density could be for the track at any given time. In other words, remove any possibility that Mr. Bennett or myself or anybody else, would try to pull something over on these people, which is, I believe I’ve addressed that issue before. Because we are, and especially myself, I’m as keenly aware of this noise issue as any. So as we proceed tonight, and the others come to express their opposition, I want them to know that we offer a hand of compromise to say that we’re perfectly willing to put the operation of this track in their hands. And I can emphatically say that I believe that I can operate from that facility a noise-free and actually guarantee a noise-free environment to any resident that lives in that area, if in fact, these people will cooperate with us and work with us through a hot line telephone on the property during any hour that we would operate. They could call that number. A person would come to their property. An observation would be made by four ears instead of two, and if it was decided that yes we can hear, then an adjustment would be made until we could, in fact, find an operational level, wherein there would be no noise from this facility. Because this is such a unique piece of property, I fully believe that that is capable of being achieved. I don’t want to take any more time, but as anybody comes to address the issue of the noise, I believe in my mind, based on our tests, that we can control it, and, in fact, have a noise-free environment to any residents in the area. Thank you sir.

Chairman: Mr. Halsey, before you leave can I ask you one question? Do you know if the atmospheric conditions and topography has any effect on how the noise is disseminated from the source?

Witness Halsey: If you will recall, I had established contact with a PhD. in California, in Clairmont, California, who is the world’s recognized expert on motorcycle exhaust noise, and, in fact, was the author of the SAE-1287 manual that determines motorcycle exhaust noise by the motorcycle industry, and in further conversation with him through e-mail, I asked him if he could provide me with a document which would stipulate emphatically and which would be allowed in a court or in some type of a proceeding, if there was any type of a document that would stipulate exactly from what distance a motorcycle noise would evaporate. And he came back and said to me, there is no such document because of the variables about which you speak. And so that’s why an exact on-site test is the only way that you can establish criteria that is acceptable in any type of a legal proceeding, because whatever is submitted as being admissible from another area, a sharp attorney will inject the issue of temperature, moisture, wind, topography change – all of those factors, and that came from him. So I don’t know, Mr. Chairman, if I’ve answered your question or not.

Chairman: You did, thank you very much.

K. Smith: Thank you Mr. Chairman. I don’t want to duplicate much of what I said in my opening remarks, but if I do, I apologize. I got to a certain point in those on the April 1^st meeting. Following the opening of the hearing on April 1^st, I gave a brief summary of the background information on the subject Special Use Permit Application and Variance Applications, as amended, and at that time, I submitted a packet of information and asked that it be entered into the hearing record, and it was accepted at that time. The packet includes a memorandum that I wrote to the Board, which contained background information, which I did review previously, as well as my comments regarding the compliance of the applications with the Henderson County Zoning Ordinance as well as recommendations from the Planning Board. I did want to note that in my opening comments, I failed to mention that we did post notices of the hearing on the property. It was included in your memo, but I wanted to mention that the Zoning Administrator did do that on March 16^th in accordance with the requirements of the Zoning Ordinance. I wanted to start off by going a little bit over a general site description. Again, some of this you may have heard before. The property is located in a county I-2, general industrial zoning district, and you can see that on Attachment 8 if you’re not familiar with it, and it’s located within the Mountain Home Industrial Park. The subject property, as you’ve heard previously, is bordered by Mud Creek on the northeast, and if you look at Attachments 5 and 9, you see that the property is owned by Branford Wire & Manufacturing as well as Carolina Industries, Incorporated, both of which contain industrial uses adjoining the subject property on the southeast. Adjacent to the property on the southwest are two vacant lots owned by David and Rebecca Neighbors, as well as a tract that is owned by CAB Properties, and that contains mini-storage units. Properties on the northwestern side include a tract that has some residential uses. It’s mainly undeveloped right where it adjoins the subject property, and that is owned by James Owens. There is also a vacant tract listed under Nancy P. Rhodes, Executrix, and Estelle Parks, as well as a mainly undeveloped tract owned by Clement Pappas. Attachment 10 shows you an aerial view of the property. Actually, the large map that Mr. Edney submitted is probably even better to look at for that purpose. And I was also going to give – the Clerk has a color photo, it’s the same photo that Mr. Edney just entered, so you have that in the record as well. You have a black and white copy of that color photo in your packet. If you recall from my opening statements, we are talking now about the revised site plan, which in your packet, is Attachment 4-B. We’ll be using that for reference as I go through my comments. The revised site plan shows that much of the property is within the 100-year flood plain, and the applicants did submit a map showing flood plain areas. We also included in the packet in Attachment 11, a map showing from our Geographic Information System, the relationship of the flood prone areas to the subject property. We also showed, in Attachment 12, the U.S. Geological Survey Map of the area which is basically included in there, I’m sure, as you can imagine, if it’s flood plain, it’s fairly flat. And yes, that particular site shown on that map is flat. The application materials, including that revised site plan, show that the motor cross facility will have two tracks. A 3250-foot long main track and a 930-foot long beginner track. And the site plan, I believe I reviewed this before, shows the gravel patron area, a parking area, a gravel drive, a registration pavilion, concession stands, portable toilets and a hand-wash station. Water and sewage disposal service for the site is private. There is a City of Hendersonville water line available on North Edgerton Road, and the closest public sewer, which is a forced main, is also on North Edgerton Road. The packet that I gave you has photos of the subject property and the vicinity that were taken by the Henderson County Zoning Administrator on January 16, 2004. They have notes attached to them. I’m not going to go over them in detail, but if you have any questions as we go through this, I’m happy to refer back to them. I’ve reviewed the Special Use Permit application and the variance applications for compliance with the Zoning Ordinance, and you have my comments in the memo. My review focused on how these applications comply with the specific site standards for motor sports facilities, the general site standards that apply and all special uses and other requirements that are applicable to the application from the Zoning Ordinance. I have included where applicable, or where I thought it was necessary, references to the specific sections of the Zoning Ordinance in the packet for reference, and I have a copy of the Ordinance here, if you or any of the other parties need it. As you will see in the packet, to assist with my review. I did ask for comments from other review agencies, which is typical when we review applications for special use permits. I understand that such information could be considered hearsay, but I wanted you to have the same information that I presented to the Planning Board. I wanted to start off by reviewing the requirements for motor sports facilities that are contained within the I-2 general industrial district. Section 200-24F(2) of the Zoning Ordinance allows motor sports facilities as a special use in I-2, and based on the application materials, the definitions in the Zoning Ordinance for motor sports facility and for racing events, the proposed motor cross racing facility would be classified as a motor sports facility by the Zoning Ordinance.

S. Baldwin: Karen, what section was that?

Karen Smith: If you’ll look on Page 2 of my memo, it refers to 200-24F(2). That is the I-2 district special use section, and then the definitions for motor sports facility is from 200-7 in the definition of racing event. I did not include the I-2 text, but I have that Ordinance with me if you would like to see that.

Chairman: They’re on these green copies.

Karen Smith: Oh, O.K. great, great. Motor sports facilities are divided into two categories. You have major motor sports facilities and minor facilities. For purposes of the Zoning Ordinance, and these definitions are provided on Page 6 of my memo. And as you will note from those definitions, the main difference between these two types of facilities lies in the seating or standing capacity. Major motor sports facilities have a seating or standing capacity of 1000 people or more, while for the minor, that is less than 1000 people, and the Ordinance defines standing capacity as three persons per 200 square feet of space directed to patron use. The application materials propose a maximum occupancy of 300 patrons and riders and the revised site plan shows 20,000 square feet will be devoted to patron use, and so based on that information, I determined that, of course, the proposed facility, will be classified as a minor motor sports facility. So, as I review these specific site standards, we’re reviewing it based on the fact that it is a minor facility. The comments that are in my memo, as I said, are concerned with compliance with the Zoning Ordinance. I wanted to, in particular, draw the Board’s attention to comments 3-D, which starts on the bottom of Page 7, which is with regard to the minimum set-back and also to comment 3-K, and I’ll go over these in a few moments, but 3-D and 3-K - 3-D deals with the minimum set-back requirement and 3-K deals with the minimum separation from health care facilities. The reason I draw your attention to those, is because those are the items on which the applicant has asked for a variance. And aside from those two comments, the rest of my comments in the memo, are really relevant only if the Board of Commissioners decides to grant the variances. I say that because many of the comments noted in my memo have to do with the applicant providing some additional information, or clarification, and they suggest conditions that would be applicable to the special use permit, but you can’t get to the special use permit until you decide what you’re going to do about the variances. So again, I’m going to stress that the two variance items are really the critical pieces of my review. I’m going to try to summarize my comments. You’ve got a lot of pages there, and I hope that in the interest of time, where I summarize, you can consider my full comments in the packet to be a full comment. O.K., for minor motor sports facilities, and I’m starting on the bottom of Page 3 of the memo, if people are following along. The first specific site standard has to do with hours of operation, and the Ordinance specifies what those hours of operation can be, 7:00 a.m. to 11:00 p.m.; that racing events can be conducted for a maximum of three consecutive days, a maximum of five days in any calendar week, and a maximum of six hours per day. And the main point I wanted to make about this site-specific standard is that we still need a little bit of clarification from the applicant about the hours of operation. You’ve got revised application materials that say they will abide by the schedule that’s stated in the Ordinance. During the February 3^rd Planning Board Meeting, the applicant stated the hours of operation would be defined and that they would be a condition of the permit, and then later proposed that the hours of operation would be from 10:00 a.m. to until 30 minutes before sun set. You can see that in the Minutes on Page 9 from the Planning Board Meeting, and then at the April 1^st portion of this hearing, the applicant talked a little bit about some of the hours of operation, and so with regard to this item, my comment has to do with that the hours of operation, whatever they be, be a condition of the permit, if granted. And if they are more condensed, then the Ordinance allows again that those be a condition of the permit. The second specific site standard has to do with fencing. The Ordinance requires that secure fencing be required. The applicant has indicated in the application materials that they will meet the fencing requirement. There are some areas in the existing fence line around the property that do not meet the requirements and also the size of the openings between – they’ve got a wire fence around the property now. The openings are too large to meet our Ordinance requirements. And so, my main comment here would be that if the special use permit is granted, Commissioners should consider making the fencing requirements a condition of the permit, and we would ask that the applicant give some additional information as to how they will meet the fencing requirement. The third specific site standard has to do with the buffer, and this is an item, if you saw the original application, the applicant originally requested a variance on, but they have now redesigned the track as shown on the revised site plan so that a variance is no longer needed on the buffer item, and that was confirmed at the Planning Board Meeting on February 3^rd, and you did not advertise for a variance on the buffer. So they have indicated that they can meet the buffer requirement. I just wanted to be sure to get that in the record. The next item has to do with the setback, and this is one of the two variance items. It appears from the application materials that it is impossible for the applicant to meet the 500-foot setback requirement for a minor motor sports facility on the subject property. The applicant has proposed on the revised site plan, a 100-foot setback on all sides. I think your memo said sites. All sides of the property, and that basically coincides with the 100-foot buffer requirement. At the Planning Board Meeting on February 3^rd, the applicant confirmed that he is now seeking a 400-foot variance from the 500-foot minimum setback requirement on all sides of the property. Because the minimum setback requirement cannot be met on the property, the special use permit application cannot be granted without a variance being granted. Specific site standards such as the setback were established to help mitigate the impacts of proposed uses such as motor sports facilities on neighborhoods. The 400-foot setback variance requested is quite large in relation to the 500-foot minimum standard, and as I noted earlier, it acts really as a way to exclude motor sports facilities from the subject property. When it comes to variances, the burden is on the applicant to demonstrate to the Board of Commissioners how the variance application affirmatively satisfies all of the findings that the Board has to make in order to grant a variance, and I reviewed those findings at your April 1^st meeting. For reference, they’re on page 3 of my memo, they’re in Attachment 1-H and they’re also in Section 200-78(7) of the Zoning Ordinance. In my opinion, the applicant has not provided, yet, sufficient reasons that will allow the Board to grant the setback variance, based on the findings the Board has to make. The next specific site requirement is parking, and that requirement was met except that there was a question that had come up based on some previous use of the property prior to them making application, where there was parking that was taking place on the Branford Wire property, and so, the applicant intends to provide all of their parking on site, but I would suggest if the special use permit is granted, that the Board of Commissioners impose a condition to require that the parking be located on the subject property. The loading requirements which is the next specific site standard have been met or addressed. The next one, which is G, is the access road corridor. They have to have a minimum of 20-foot travel way within a 45-foot wide access road corridor, and that has been shown on the revised site plan. The only issue that staff had brought up with regard to that had to do with the timing of when they would get the travel way upgraded to meet those standards of the Ordinance. And so, we would ask that the applicant address when that will be upgraded, and if the permit is granted, that the Board make that construction and the timing of it such that it be constructed and approved prior to operation of the facility. Next site specific standard has to do with fire protection, and as you have seen from the memo, according to review by the Fire Marshall, they have satisfied the requirements of the Zoning Ordinance with regard to that matter. The next site specific standard is noise mitigation, and the Ordinance says that noise mitigation shall be required. With regard to this item, the application requirements, which come a little later in the Ordinance, require that a noise mitigation plan be submitted to the Board of Commissioners for approval, and based on the application materials themselves, it says that peak noise emission from the proposed use is estimated to be 60 or 70 decibels, and that noise mitigation will be provided through space and natural vegetation, and the materials also state that noise containment is accomplished through distance to working areas. I don’t know if that is a sufficient noise mitigation plan that the Board can approve, particularly because of the variance requests, that have to do with the setback and the two mile separation from health care facilities. The applicant should address this issue in more detail as far as their noise mitigation plan. If the special use permit is granted, the Board would need to approve the applicant’s noise mitigation plan. Lighting is the next site specific standard, and the application materials indicate they don’t propose to operate in the evening so as long as that is the case, that standard has been satisfied. The next one, which is K, has to do with separation from health care facilities and a minimum two mile separation is the requirement per the Zoning Ordinance. I provided a definition of separation. It talks about that no portion of the property on which the use is proposed can be within the two miles of the approximate center of what we call the protected use, or in this case, the health care facilities. The definition of health care facility has also been provided in the packet. And the applicants provided a map from the Henderson County Assessors Office with their application materials showing a radius, and it had points on it showing the location of health care facilities, and the map from the Assessor’s Office is a requirement. Staff – that map actually, once it was created by the County GIS Department, the file I believe was deleted so we recreated one so that we could label the facilities, and you have a copy of that in your packet. That would be Attachment 16. I believe the applicant’s map showed six facilities, and the one that we prepared later actually showed nine. And I think part of that has to do with, there’s a difference in ownership with the Heritage Hills facility. It’s actually two separate owners on the health care side of that, and it also – this is a technical thing, but when GIS plots the facilities, it plots it as a point, and I think on the applicant’s map, it plotted all of the facilities associated with the Layman Foundation, and some of the properties up there near Fletcher Academy plotted on top of each other, and when we did it, we were able to spread those out. So that’s why there’s – the facilities were actually there on the applicant’s map, they were just covered up from what we can tell. The applicant has requested a significant variance from the minimum separation requirements per the addendum to the variance application that we received on January 15, 2004. That’s Attachment 3. The applicant is requesting that the separation from health care facilities be reduced from two miles, which is 10,560 feet, to one-third of a mile or 1,760 feet, and basically that’s a one and two-thirds mile, or 8,800 foot variance. Because the minimum separation requirements from health care facilities cannot be met on the subject property, again, the special use permit cannot be granted unless the variance is granted. And as I mentioned with regard to the setback requirement, the separation requirement is intended to help mitigate the impact of the use on the neighborhood, and because of the standard, it appears from health care facilities. The separation standard acts a lot like the set back in that it prohibits basically this use from occurring on this property, and again the burden in on the applicant to demonstrate that they’ve met all the tests for a variance to be granted. The applicant had included with their materials letters from owners of two of the health care facilities, however, the packet of letters that Mrs. Corn has show letters from those same health care facilities that contradict the original letters. And again, I know those letters are all hearsay, but I wanted to point that out, and I don’t know that just because health care facilities provided letters saying they don’t mind, is a reason on which to grant¼.

TAPE ENDED, NOT SURE WE GOT EVERYTHING.

Karen Smith: ¼.be prohibited on protected mountain ridges, that one’s OK. – flat piece of property. M – The owner or operator shall be required to meet the application requirements of 200-38.3. Generally, they did meet those requirements. There are a few items that we wanted to address where we may need some additional information for clarification. The first is just for the record. I wanted to note that on the application for the Special Use Permit, I think there’s a reference to an older version of our Zoning Ordinances to the Special Use Permit section and so it really should say Section 200-24(f)(2) as the authority for granting the requested permit. The site plan – we reviewed the revised site plan and there were two things on that. One was that the dimensions for the refueling area needed to be shown. At the Planning Board meeting the project engineer confirmed that those dimensions are 50 feet x 50 feet, but that will just need to be shown on the revised plan. And also, the site plan is suppose to show the stated minimum buffer and setback, and, of course, since they need variances on those items, they were not able to show the required minimum on those items. The applicant, as part of the application materials, is also suppose to certify compliance basically with the separation requirement, and that is an open item, of course, until the variance is granted. Some of these items are going to be a little bit duplicative with things I’ve mentioned before, but application materials are suppose to include a schedule of proposed hours of operation, and you have my comments on that already, that we need some clarification. Noise mitigation plan – again we just need some clarification as to what the plan is. Fencing – again clarification. Written narrative – the applicant provided responses to the required items, but we feel like some additional information is needed. One, being a description of the operations associated with the proposed use. I think we are getting a general idea from the materials as to what is actually going to occur on the property but there seems to be a little bit of difference in how many special events in a year, and on weekends, how many practices in a week, and that sort of thing would occur. The maximum patron capacity for which the application is being made – under the application requirements, whatever is stated is what will become the maximum capacity, and the applicant has stated it as a maximum occupancy of 300 total persons and riders, and we just want to clarify that everybody understands that that would mean the maximum patron capacity would also be 300, unless they propose something else. The types of materials and equipment to be used on site – just, again, clarification. The application materials said motorcycles, but from what I understand, ATV’s will also be able to use the tracks, and so, if there’s a question about that as far as writing an order on the special use permit, we probably need to specify that, if that’s the case, or if there will be any other equipment brought on to the subject property that could be used during practices and events. And then if there is any other information that the Board of Commissioners feels like it needs to makes it decision, the applicant will need to bring that forward. Those are all the site specific standards that apply to minor motor sports facilities in an I-2 district.

The next set of standards are what we call the “general site” standards, and these apply to all special use permits in general. All special uses have to meet seven general site standards, and I sort of went over how those standards apply to special use permits back on April 1^st, but in looking at the general site standards and whether they have been met, the Board can consider the type and size of the principle use, the size of the property, other relevant factors. In this case, the applicant does not bear the burden of proving that all the standards have been met. The applicant will be required to produce evidence to rebut any evidence that shows that the standards have not been met. Section 200-56(d)(2), provides that the Board of Commissioners, if it finds that a proposed use is contrary to a general standard, it can impose a condition on the special use permit to avoid the violation of the general site standard. That same section also states that the condition imposed could be an increase in any minimum specific site standard, and again, the imposition of condition would only be based on evidence showing that the general site standards have not been met. The application materials addressed the general site standards. The applicant also provided some additional information to the Planning Board back on February 3^rd, and again, I’ll refer you to the Minutes in Attachment 6, but staff wanted to go over some of the items on these general sites that may need some clarification. The first one has to do with health and safety and the impact of the use. It says establishments requiring special use permits shall not be located or developed in such a manner as to adversely affect the health or safety of the persons residing or working in the neighborhood of the proposed use and will not be detrimental to the public welfare or injurious to property or public improvements in the neighborhood. We defined in the memo earlier neighborhood as any area impacted by principle use, and, of course, defining the neighborhood in this case is not simple. As stated in the applicant’s response to the first general site standard, the use is located in an I-2 general industrial zoning and there are industrial uses as well as some floodplain in the vicinity. The specific site standards for minor motor sports require the two-mile separation from health care and a 100-foot buffer and the 500-foot setback, and these specific site standards seem to indicate that the impact of a motor sports facility may extend beyond the proposed uses of any neighbors, and since the applicant is requesting variances from two of those standards, it appears that this general site standard cannot be met unless the variances are granted.

The second general site standard has to do with minimizing the effects of noise, glare, dust, solar access and odor on people residing or working in the neighborhood of the proposed use and the property and public improvements in the neighborhood, and as far as this one is concerned, the main issue has to do with the noise mitigation and again, whether the plan that they have submitted is sufficient for the Board to approve. And so, I just restate my comments from before regarding the noise mitigation plan.

Standard number three has to do with establishments shall not be located or developed in a manner that would seriously worsen the traffic congestion so as to endanger the public safety. My response to this one is sort of multi-faceted. Just so you know, North Edgerton Road is a state road, and DOT did provide comments on the application. Basically, that stated the applicant needed to apply for and obtain a driveway access permit prior to connecting any roads or drives to this state maintained road and prior to the issuance of any building permits. So one condition, if the permit is granted, that I would suggest is that that driveway permit be obtained prior to operation of the facility. Next, the applicant has indicated that the use would not adversely effect or worsen normal traffic in the area. Public safety would not be compromised, and the application materials go on to say that 98% of all track activity would take place on weekends. All businesses in the industrial park would be closed. No adjacent businesses operate more than one shift. Track attendance on any given weekend is no more 25 vehicles. The application materials, as I have said, allow for 300 maximum patrons and riders and 100 parking spaces, which leads one to believe that the site’s designed to handle more than 25 vehicles, and I think the Board actually had questions about that at the April 1^st meeting. Based on my own observations of use of the property prior to the applicant filing for the special use permit, I would expect that if there are special events on weekends, it would attract more than 25 vehicles. There’s a letter in the packet of correspondence that Mrs. Corn has from Clement Pappas, which basically pointed out that they are looking to move some operations to a warehouse that is located at 199 North Edgerton Road, and that’s actually, if you go past the entrance to the motor sports facility, this facility would be on the left. It’s where the old Smurfit Stone operation is located. And that letter indicated that there will be an increase in tractor-trailer traffic on Edgerton Road in the vicinity of the proposed project, and that traffic can be expected to occur from 6:00 a.m. to 9:00 p.m. weekdays, in between 6:00 a.m. and 2:00 p.m. on Saturdays. And I did make a call to their Human Resources Department, and Clement Pappas does operate three shifts during the week, and at least one and up to three on Saturdays and occasionally on Sundays. In order to better address this general site standard, I felt like the applicant should provide some additional information. Going back to something I said earlier about the types and frequency of weekend events; how many riders and patrons to expect; how patrons and riders will access the property from U.S. 25 North, because there are actually a couple of ways over from 25 to North Edgerton Road; how frequently the site will be used for practices; how many riders and vehicles associated with such riders will be expected for practices, is also some additional information that could be specified. And the Planning Board received some of this information verbally, but I think it needs to be in the record for the Board of Commissioners. For example, the applicant told the Planning Board that there would be no more than eight small events per year. If that’s what they’re applying for, I think we need to state that for the record. Also, on this same general site standard, Item 9 of the letter the applicant turned in to me on February 2, 2004, and that’s Attachment 4-A, it says that Mr. Bennett retains the right under the Ordinance to request up to two temporary use permits to host events, which may exceed permitted operations. The Zoning Ordinance actually allows the Board of Adjustment to issue temporary use permits for uses not ordinarily allowed in the district, provided the temporary use permit has a fixed expiration date and the applicant satisfies any conditions imposed by the Board of Adjustment. But we also have in the same section that deals with temporary use permits, a specific temporary use permit for isolated racing events not otherwise allowed under a valid zoning permit. So that might be for something that might exceed what the Board might grant a special use permit for, for example. However, one of the standards would be that temporary use permits for racing events shall not be issued for locations that would violate the separation requirements for motor sports facilities contained within the applicable zoning district. So you’re coming back to the same thing where we’ve got a two-mile separation for a standard special use permit and a two-mile separation for temporary use permits. So the Board of Commissioners may want to have the applicant address what types of events would require a temporary use permit. If you decide to grant the special use permit, you may want to consider whether to add any conditions concerning applications for temporary use permits, whether the variances on the separation standards – if you grant the variances – would apply. That sort of thing.

The fourth general site standard has to do with special use permit applications or uses complying with all applicable Federal, State and Local laws, rules and regulations, and I have outlined in here a couple of places where the applicant may need to provide some evidence before beginning operation of some permits. One has to do with their erosion control approval, which from the materials, they already have. They would just need to provide a copy of such approval prior to beginning operation. That would be a suggested condition. From what I understand, they may need building permits for some of the structures that have already been put up out there, particularly the registration pavilion. Permits from environmental health might be needed if, for example, they decide to do certain things out of the concession stand. So there may be some local permits that they would need. They also need zoning permits, again for the structures that are already constructed out there. Another Federal permit that might be required may be a core of engineer’s permit for any earth movement and that sort of thing. They are going to be doing some changes to the track that’s out there now in order to meet their buffer requirement and such. So if the special use permit is granted, staff would suggest that the Commissioners include a condition that the applicant provide evidence of approval of all applicable local, state and federal permits related to construction and operation of the motor sports facility to the Planning Department before construction or operation.

The fifth general site standard has to do with consistency with the goals and objectives of the Henderson County land use plan. And on this item, it looks like it was OK with regard to the stated goals and objectives. The use, itself, does not conform to the future land use map that was included in the Land Use Plan, but actually designates the property for agriculture, and that is probably due to the amount of floodplain on the property. However, the area was zoned I-2 before we ever had the comprehensive plan, and so those two things don’t exactly match up in that case, and so, other than that, it appears to comply with the land use plan. And I did want to make the Board aware that this property does fall within the study area for the U.S. 25 North project, in case anyone was wondering.

The next general site standard has to do with conformance with any approved official thoroughfare plans of Henderson County or municipality therein, and this one is satisfied. We don’t, in the county, have an adopted thoroughfare plan, although NCDOT is working on a transportation plan for the County.

Those are the seven general site standards. The other comments that I had, had to just do with some other considerations for special use permits. When the Board of Commissioners looks at applications for special use permits, it’s supposed to find that satisfactory provision and arrangement has been made concerning things, including ingress and egress, off-street parking and loading, utilities, buffering, play grounds, open spaces, pedestrian ways and buildings and structures. And a lot of these topics have been covered already by my comments. There were just a few other things that I wanted to point out based on those items. A, B and E in your packet – ingress and egress, off-street parking and loading and the play grounds, open spaces, access ways, pedestrian ways – I feel like the applicant should talk a little bit more about how those items will be managed on the site. For one thing, the beginner track entrance and exit appears on the revised site plan to be accessed through the parking lot, and so the applicant should address how potential conflicts between vehicles and riders will be avoided. Item D has to do with existing vegetation. What existing vegetation will remain on site and if additional buffering material will be provided. Mr. Bennett indicated at the April 1^st portion of the hearing that he would plant trees and he referenced in particular the areas adjoining I believe it was Mr. Owens’ property. And I think some additional specifics would be helpful if the Board decides to grant the special use permit and wants to make that a condition. And then on Item F in regard to some buildings and structures, that sort of thing. I wanted to see if the applicant would indicate when they propose to remove or move some items that are already located on the site. These include accessory buildings, a dumpster, some junked vehicles and other items that are right now located within the 100-foot buffer and they’re going to have to move those out of the 100-foot buffer if the permit is granted. So if the Board of Commissioners decides to grant this special use permit, it may want to determine if any additional conditions are necessary related to those items that I just reviewed. Also, the applicant has indicated that any signage for the facility, whether it’s on site or off site, will comply with the Henderson County Sign Ordinance, and I would suggest that if the permit is granted, that the Board consider a condition that would require such signage also comply with the Henderson County Zoning Ordinance.

That is basically – that covers the comments with regard to compliance, but I also wanted to provide the Board with the recommendation of the Planning Board. The Planning Board, at a special called meeting on February 3^rd, reviewed and discussed the special use permit application as amended, and the variance application as amended. And after hearing from the applicant, staff and attendees of the meeting, who were both for and against both applications. The Planning Board voted on two motions, and those are on Page 13 of the Minutes, which is in Attachment 6. The first motion, which was approved unanimously, 5 to 0, requested that the Board of Commissioners study motor cross facilities in relation to motor sports facilities as defined in the Zoning Ordinance and ascertain whether they should have different requirements placed on them for other types of motor vehicles. Staff informed the Commissioners of this request at its February 18, 2004 meeting when Mr. Edney had approached the Board about scheduling a hearing on the proposed Amendment to the text of the Zoning Ordinance. The second motion, which was also approved unanimously , 5 to 0, recommended that the Board of Commissioners deny special use application SU-O3-01, because of the size and magnitude of the variances requested. And I did want to add the Planning Board Members indicated that they made that recommendation with regrets, and that’s mainly due to what they felt was the need to study motor cross in relation to the definition of motor sports facilities. Those are my direct comments, and I have one witness to call, Martha Sachs, who was added at the last meeting, if the Board wants to hear from her now, unless you have questions for me.

Chairman: Any questions for Karen?

NO RESPONSE.

Chairman: You want to call your witness now?

Karen Smith: Sure. I’ll call Martha Sachs.

Witness Sachs: At our last meeting here, I was asked if I was officially representing the County Advisory Committee on nursing homes and rest homes. At that time, I did not have that official status. We had a meeting last week, and they unanimously agreed that I am to represent the entire committee, and I am also speaking on behalf of the regional ombudsman, who has authorized me to do so. My concern here – the applicant has said that they will not operate after dark, and in the summer time, the sun doesn’t even set until, in some months, 8 minutes before 9:00 o’clock, and which means it doesn’t get dark till quite a bit later. And in some of these facilities, nine of which are within the two mile radius, people go to sleep quite early, and sometimes they have a lot of trouble sleeping. Any noise at all can be very disturbing, and I think that this needs to be taken into consideration. Also, the fact that they say they won’t operate after dark because they do not have any lighting, but if this variance is granted and the permits are granted, there’s nothing to stop them from installing lighting and operating at even later hours. The noise is not the only issue. Pollution is also an issue. These little vehicles have an awful lot of pollution coming out of them, and we have in these facilities people who have difficulty in breathing, who are on oxygen support right now. Breathing in additional pollutants could really endanger their lives as well as their health. But, there’s something that’s beyond – I don’t want this to be an issue between the young and the old. I’m a grandmother. I’ve got a teenage grandson. I am very understanding of these kids who want to have this kind of facility, but this is not the only place in Henderson County that they could have one. There’s a lot of vacant land that is not near these kinds of facilities or with homes nearby elsewhere in this county. And I think the issue really is that Mr. Bennett would buy land that has the specific restrictions about being two miles from these facilities and with 500-foot setbacks, and then decide to build something which totally disregards these restrictions, puts up buildings which he hasn’t got the permits for before he builds them. He’s got to get them now after he builds them. I think this is a question that you Commissioners to think about the fact that if we have regulations and every time somebody decides they want to do something that does not observe these regulations, they can just buy it and have the regulations changed. We’re talking now about planning for this whole county, and I think you need to think seriously about this. This is something where a regulation exists. If we permit somebody to come in and totally violate this and then say, well sure that’s a good idea go ahead, we’ll give you a variance, you’re violating the trust of the people of the county who count on regulations to know where they’re living and what’s going to happen around them. And please give that some really serious thought, because this is a bigger issue than the question of ‘do we do it for the young’ or ‘do we do it for the old’. Thank you.

Chairman: Mrs. Corn, would you call the parties’ evidence of the first party.

Mrs. Corn: Gerald Nash.

Chairman: Mr. Nash, do you wish to testify and present evidence at this time?

Atty Beeker: He gave you an affidavit?

Mrs. Corn: Mr. Nash gave me an affidavit, because he was afraid he wouldn’t be here to present his evidence. There was a school board meeting or something this evening.

Chairman: Should we enter that into evidence or have it read?

Atty Beeker: I would ask if there’s any objection to it. Technically, it is under oath, but would technically be considered hearsay. There’s been a lot of other hearsay heard, so, I leave that to the Board at this time.

Chairman: Mr. Edney, what’s your preference on…?

M. Edney: We would object to it, if Mr. Nash is not here to be questioned in anyway, shape or form, so, obviously, Mr. Moyer made the point during some of my evidence that it’s pure hearsay and should not be heard.

Chairman: Is it the Board’s pleasure to hear any evidence from…? Do you have any advice for the Board from a legal…?

Atty Beeker: I would just give you the same advice I gave you last time. In that there is a difference in admitting it and relying upon it. Clearly, any material findings of fact that you make must be based on both sworn testimony and credible evidence, and general hearsay is not considered to be credible evidence. If you hear some hearsay information that you would like hard evidence on, then the Board always has the prerogative to continue the hearing and call that person in to be able to testify directly. So those are the only comments I would offer to the Board.

Chairman: What’s the Board’s pleasure?

S. Baldwin: Well, it seems like the precedent we’ve been following is that we’ve been allowing folks to present hearsay, but then we note that it is hearsay. So if we’re going to do that for one side, I think we should do it for the other.

Chairman: Any objections to that from the Board?

B. Moyer: Well, we’re pretty far down the road as Shannon mentioned and we’ve got a lot of hearsay in this record.

Chairman: Well and I think we decided the point is how the Board uses the hearsay and if we wanted additional information ¼ CAN’T UNDERSTAND – TOO FAR FROM THE MIC. We could go ahead and request that at a later point if it became very important so we’ll go ahead and admit that then at this point in time ¼

Atty Beeker: I would just admit it and if any of the Board members wish to read it, they would be free to do so. If any of the parties want to see it, you’re free to do so. Mrs. Corn has it.

M. Edney: And if the record could note our objections.

Chairman: We have a second party, Mrs. Corn?

Mrs. Corn: Kenneth Cobb with Park Ridge Hospital.

Chairman: Mr. Cobb, do you wish to testify and present evidence at this time?

Witness Cobb: Yes.

Chairman: Please come forward, please.

Witness Cobb: As has been stated earlier this evening, Mr. Bennett did obtain from Mr. Mike Schultz, the President of Park Ridge Hospital, a statement that is included in the application packet that states that at that time, Park Ridge Hospital had no objection. After receiving the copy of the application and reading it, we have since changed our opinion and do object to this variance request. In looking at the application, Section 14, there are very few, if any, limits as to what could actually occur at this motor cross event, and so in reality, what has happened in the past is not really an accurate predictor of what could happen in the future. There could be AMA sanctioned events with a full class load of high performance motorcycles performing at it, and things like that, so anything that has occurred in the past is really not an accurate predictor of what could occur in the future, and based on that, that is our objection to that. Also, I have a question – the site plan that I have in here does state 300 as a maximum number of people, but also, on the operation section, it does talk about 250 in the actual written application, and I’m not sure which it is.

Chairman: We’ll cover that in cross-examination.

Witness Cobb: O.K., O.K. the other thing in this continuance of hearsay. I was a member of the original Henderson County Noise Task Force back in 1999, and at that point, that was somewhat started as a result of a motor sport track that was being considered. I personally retained Dr. Noel Stewart, a Ph.D. graduate of North Carolina State University at Raleigh, and his statements at that time do corroborate the evidence here that atmospheric conditions do have tremendous impact on what happens to noise. So, we on our site agree with that, and so a single test would not be indicative of certainly what could occur at any other point in time regarding a race track. It so happened yesterday afternoon I was out at the site of the new county EMS station on Commercial Blvd. at Upward Road, and heard this quite loud roar of a noise, and asked the construction worker what that was, and they said, well that’s Andy Petree racing, which is across the interstate and up by the school, and so being a racing fan, I went up there, and believe it or not, I drove around the building with the window down in the pick-up truck and you could very faintly hear the noise right on the site, but driving back out back down by the Texaco Station, again the noise became quite prominent. So, what occurs at one location can be different at another location, and so just because somebody doesn’t hear it at one location on a day doesn’t mean that they won’t hear it at that same location on another day. That’s all I have. Thank you.

Chairman: Any questions for Mr. Cobb?

NO RESPONSE.

Chairman: Thank you sir. Mrs. Corn, would you call the next party.

Mrs. Corn: Dorothy Freeman.

Chairman: Mrs. Freeman, do you wish to testify and present evidence at this time?

Witness Freeman: Yes.

Chairman: Come on down.

Witness Freeman: I didn’t think I’d be up here among ya’ll. I do have a paper from a lady that I didn’t get last week added in, but she couldn’t be present last week and is not present this week, and I don’t know whether or not you just want to read it or it would conflict with anything but it…

Chairman: And who is the paper from, who is…?

Witness Freeman: It’s the lady that lives across from Heritage Hills. Her name is Francis Carver.

Chairman: I guess we are in the same position as with the other letter. I am sure Mr. Edney would object.

Witness Freeman: O.K. There’s just one that wasn’t on there, and I would like to call him, after I get done speaking I assume. Am I first with 25 minutes? So we can get out of here at 12:00.?

Chairman: Go right ahead.

Witness Freeman: You’re a brave person. Well, my name is Dorothy Freeman. I have stood before part of this group before. I have lived in Henderson County since 1946, leaving for about three years, but I’ve lived on this piece of property for 52 years. I have developed land that I owned 40 years, and right now, the first piece, I’ve, there’s 12 houses on there. That’s how slow I have been developing land. I am now known as a major subdivision, although we usually take one a year, but age is catching up with me, and I have to try to sell two a year, but Uncle Sam takes care of that too. So I don’t know what I’m going to do in the next few years. I just hope I survive, and that’s the main thing. One of the subjects talked about tonight was artifacts. I want you to know this piece here was found on the bottom land that I owned for 35 years (Mrs. Freeman held up the necklace she was wearing), and it’s original, authentic, so there are artifacts right around our area. When I was driving down last night to the test site. That’s the first time I’ve ever seen motor cross. I’ve seen it on T.V., not watched it too long… any channel changing. The noise that we hear in that situation where I live, it funnels in from the interstate, and nobody believes it. That bottom land carries that sound all night long, if you’re listening to a certain amount. You’ll say well you hear the interstate. Yes, I do. And the one thing about that motor cross track, when you drive first in, once you look over towards the interstate is the weigh station. And it’s the trucks stopping to be weighed. So it’s a double whammy for us that live out here, that they might put something with noise in that vicinity. Do I hear the airplanes? Yeah, I hear the airplanes. We’re at least two or three miles from the airport, when they’re landing and taking off, depending on the revving up the engine. At the site, when I was in there, I noticed a lot of red clay buffers that were being dug up. That means erosion for Mud Creek. That means water stoppage for Henderson County. I’ve owned enough bottom land there, I know that it had been 35 acres and 40 acres that I owned. The water backs on us, and it does not flow out usually, because we don’t get enough… but it can’t take it down the French Broad, it begins to back into Henderson County, and you know that on South Main, you have a problem with water. And it has been over 8 foot high on our road going into my house, and for years we had to walk in. Now we have a little better trail to get into where I backed in and developed land, if we have high water. I have yet to see, after the 52 years, the 100 year flood plain, and I hope I don’t see it in my life time. At 76 though I’ve got still hope that it might still come, so I’m not sure how much water you’ll have on Mr. Bennett’s land. So driving down to the motor cross, all I had to do was roll the window down. I drive a diesel truck. If you can hear the sound that they were making, the few that were there. You only had 20 participants there. So there were some little RV’s. I don’t know how many, but that was what was stated to my knowledge. If I’m wrong just get up and say so and I’ll let you know what I think, what I thought that was the number given. If you are just running people one at a time following each other, what scares me worse is those young children going over a hill. What happens with the law of gravity when that engine stops? Somebody’s going down and somebody’s going to get hurt. But this is just my opinion of what I feel as a mother, grandmother and a great-grandmother so that is the responsibility of the person that puts an operation to that field in for their children and I have no jurisdiction over that and it’s just the way life is. It’s a whole new scheme, and I’m of the old school instead of the new school, and I admit that I’m old and I can’t help that. I wish I was 20 years younger and knew what I know now, but I don’t guess it would be motor cross. It would still be cows and development. But listening to the sound of that and listening to the combination and the neighbors all were out listening. You all hear that few of motorcycles running. So, other than that, I’m not, I’m definitely thinking no variances should be added. We worked for two years when the race track of 5,000 people were gonna be right across from my farm, less than 100 feet from me, driving a two-lane road to get into that facility. I just don’t think that this is a suitable thing. I feel that the letter that I, shouldn’t, I don’t know if I can comment about it, but the lady has there written, but I will put my own comments in it. I do not think Highway 25 will handle the traffic. When you go to Mountain Home, you have one thing in common. It used to be the Prison Camp Road, that’s the only signal and it goes left if you’re coming from Hendersonville, and there is no right. So when you pull over there, there’s people that are going to be turning left to Mountain Home. You have about four exits or driveways in, that’s a possibility to where the motor cross is in I’d say what – that should be out here 2000 feet, 3000 feet, to where the industrial entrance would be to there where you go in – unless you go Cloverdale. If you go to Cloverdale, that is the closest entrance to Edgerton Road to get down to the motor cross site. When you do that, it such short - it’s say 50 feet from the signal to that turn off. I may be exaggerating and I’m not sure if you’re measuring out, that’s the first left hand turn off of the Prison Camp Road sign or Mountain Road, whatever they call it, and you’ll be turning left. But on the opposite side where Heritage Hills are, there are seven driveways. They go into businesses. They go into Heritage Hills. They go into private residences. When they do, they are going, depending on which direction you are coming from, they have no problem, because we are gonna have a five lane highway turning right, but turning to the left or, depending on which direction you are coming from – if you are crossing over and going left, you are gonna cut the center lane off, and you’re gonna have to have time in there to do that thing, and I believe your whole center lane is going to be backed up. Right now we’re backed up quite a bit from people switching around sign boards, slow, stop or whichever way it goes. But I think if they put another signal at in the Industrial Park, which I think would be the only road in other than Cloverdale, because the Lee Smith Road is, doesn’t look functional at this time for it, that it would handle that kind of traffic in, especially on a race day. So if you’re putting 200 or 300, what are you having – I’d say you’d have 100 cars, but evidently not. Everybody carries piggy-back or put a trailer to carry what you’re functioning into. So I really think we will have a problem with our new road going into Hendersonville, and I really think that needs to be looked into. I am opposed to the variances of any kind. I created my own neighborhood. I say fortunately, it has been very good for me. I have good people, and they’ve stood behind me, and they’ve purchased land and they’ve purchased houses, and I feel I am responsible to a sense that if somebody interferes with what you have there, of a quiet place, other than the interstate and the other noises we adapt to. I don’t feel we need to adapt to another noise, and it’s also going to interfere with my income because the Planning Department wants to know which direction I’m going into next. We’ll I’m going towards what brings me the most money. What brings me the most money is high hills and the view of the Pisgah and not with the interstate, can’t see if from that section. We’ll see toward Stoney Mountain and that view there and over there to where the houses are in the other facility going towards Asheville, Rugby Drive. So that’s my opinion of what I think and the interference of what might be possible in my lifestyle for the next years or so, and I’d like to call my first witness, unless there’s some questions.

Chairman: Mrs. Freeman, before you call your first witness, can I ask you, do you still farm the land in your area there?

Witness Freeman: I farm the 35 acres that I have in my back yard. When the fellow that was in the trash business that I never complained about, I have complained about the motor cross. Somehow it didn’t get back to Mr. Bennett. It was Mr. Hyder that bought that land. I thought, well I better sell my bottom and buy the land where he’s running the trash trucks, so I bought 12 ½ acres up there so I didn’t have to look at trash trucks and then he decides…

Chairman: …adjoins your farm?

Witness Freeman: Adjoins my road, driveway. So in other words, now I, well in ‘98, when they decided to put this race track in, that would adjoin my driveway.

S. Baldwin: I’ve got a question. Where is your property in proximity to this site?

Witness Freeman: It’s off the old Asheville Road, it’s, you’ll see¼.. TAPE ENDS

S. Baldwin: What name or title is the property in?

Witness Freeman: Well it’s now 232 High Hills Road, but it’s listed under the Old Asheville Road.

S. Baldwin: So you are or you are not a contiguous property owner to this property?

Witness Freeman: I’m not what?

S. Baldwin: You are or not a contiguous property owner?

Witness Freeman: Continuous you mean?

S. Baldwin: Next to.

Witness Freeman: Next to. No I’m not. I’m about a mile distance.

S. Baldwin: You’re a mile away from the property?

Witness Freeman: Yes sir.

S. Baldwin: O.K.

Chairman: Any other questions for Mrs. Freeman?

NO RESPONSE.

Chairman: Go ahead and call your witness if you would.

Witness Freeman: O.K. Is Harold McKinney in? Uh oh, Harold’s missing. Let’s do Susan Lane. Do I stand or sit?

Chairman: You can be seated.

Witness Freeman: OK, I will.

Witness Lane: Hello.

Chairman: What is your name please?

Witness Lane: My name is Susan Lane, and I live on the property adjacent to Dorothy Freeman, which is within probably about…

Chairman: Have you signed your affirmation, before we take your witness testimony, for Mrs. Corn?

Witness Lane: Affirmation meaning an oath you mean? I thought I did.

Chairman: Let me just have a second.

Witness Lane: I’ll just sign it.

SEVERAL PEOPLE TALKING – CAN’T MAKE OUT WHAT.

Atty Beeker: You might want to remind Mrs. Freeman that she is limited to five major witnesses and anybody else would have to be a minor witness and limited to three minutes.

Witness Lane: Do I speak now?

Chairman: Go ahead Susan, if you’ve signed your affirmation.

Witness Lane: I did. I live in the Naples area, approximately one mile from the proposed site of the motor cross track. I would first like to say that I agree completely that the kids of this area need a place to enjoy motor cross. I was very impressed when we were here the last time, that that is a need, and I especially appreciated Mr. Bennett’s care in insisting on parental supervision. I thought that was very responsible. However, I still feel that the main question to consider here is – I don’t want to sound like a smartaleck, but what part of no doesn’t really mean no? The citizens of this county have already fought this issue in 1998, when the race track was debated, and they made their will very clearly known at that time, especially in regard to the siting of this kind of a facility with regard to health care facilities – that it should not be within two miles. There are nine health care facilities, including the hospital, which is within one mile of the proposed site. My big concern is, that will this variance, will one variance lead to another and another and another? And if so, then the citizens who fought this battle once in 1998 would have to keep coming back as we have done here and fighting this over and over again, when they’ve already made their will known, and they had good reasons for that. And they’ve already asked for one variance – there’s the variance to have this facility and now another variance to have the setback significantly, 4/5ths reduced, which is, and to issue temporary use permits which would have larger and larger crowds when those temporary use permits are in effect. It just seems like it’s already being set up to ask for more exceptions to the rule, and I feel that if the citizens of the community design an ordinance and they fight that battle and it was for a good reason, that there’s a health care facility there even though maybe they can prove that there is a little bit less noise for this one. This sets the precedent that anybody that wants to come along, can come along and say well we want a variance too, and so do we, and so do we. And as the first lady who got up here in the blue outfit said, these things were put in place for a good reason. I also want to say that I realize Mr. Bennett will have a difficult time in using his property in another way, but when he purchased it, it was a 100-year flood plain. As a matter of fact, it’s within an area of a 500-year flood plain. This is well established. I don’t understand why his surveyor didn’t make him aware of that, and I feel that it is unfair to plead hardship for him with the use of his property that he won’t be able to do anything else, when he did have the chance before the bought it, it was really clear, first of all, that it was a flood plain. Second of all, that the ordinances against putting a motor cross track in that area were well in place. This was all very clear. On the other hand, the people I feel it would really be unfair to are those people who have property, had it long before that, had it actually, in fact, before the ordinance went into effect and put these ordinances in place so that they could protect their property. That hospital has been there for years. In other words, all these people who have significantly more invested than Mr. Bennett’s investment. If you take a group of people, their interest should be more or less not considered as valid as Mr. Bennett’s who has a hardship now because he has land that’s in an area that can’t be developed in any other way. Well he had the chance to say, O.K. I don’t want it if I can’t develop it. Those other people were banking on you upholding the laws that they’ve enacted, and asked you to enact and then if you go ahead and grant variances, it’s putting his interest above other people who trust you to uphold their interest, which I feel is extremely unfair. I guess basically what I hear being asked for is a set of variances that would invalidate the protections that have already been set in place by other people. And the last thing I want to say is I really feel that the behavior of Mr. Edney has been very poor in having a gentleman come up here and give a rather lengthy explanation of his expertise, a person from California, and have all that evidence placed before you tonight. The man was able to say it. It’s like the old Perry Mason show – well I object. Well, who cares if you object. It’s all been said. You’ve heard it. You’ve got all the information. But then when Mr. Nash’s paper was put up to be read, well suddenly that’s hearsay. Well it was acknowledged after this man spoke, that his was hearsay too, but everybody got to hear it. I really think that that’s kind of dirty pool, and I would just like to say that I feel that the citizens of this community deserve more than that. Thank you.

AUDIENCE CLAPS.

Chairman: Are there any other witnesses Mrs. Freeman?

Witness Freeman: The next one will be Judy Possinger.

Witness Possinger: My name is Judy Possinger. I live at 328 Canterbury Way, which is approximately a mile as the crow flies from the proposed motor cross facility. I, too, am not opposed to kids. We have three kids. We have grandkids. I love kids. I think they need to be kept busy, and I think the attitude of drug and alcohol freedom and family time is commendable. However, I think our kids need to be involved in a sport that does not unfavorably affect other people, and probably my own opinion is that they could find a much safer way of doing it. I have two acquaintances. One is a 30 year old gentleman, who actually raced motor cross but stopped because of the safety issues, and his comment was ‘they are very loud’. I also have a friend who does sheriff patrol near a motor cross in Virginia, and her comment was ‘that there was a lot of noise which rises above the barriers’. I think decibels can be measured, but that may not be actually what our ears hear. We have lived in our home for 30 years. My husband is a physician at Park Ridge Hospital. We chose this location because it is close to the hospital, and is a peaceful location. We live on top of a hill, and we hear things that other people do not hear. We have a horse farm. We board horses. We volunteer with the Henderson County Sheriff’s Mounted Patrol and we spend much time out of doors working and training our horses and we would like to enjoy our peace and quiet. We do hear the interstate and that’s enough noise for us. And we feel that our property would be devaluated by a motor cross facility. My second and last concern is that if this variance is granted we are concerned that the door will be opened for larger major motor cross and possibly auto racing in the neighborhood neighboring low lands which our community worked so hard to prevent. I would hope that our Commissioners would consider these concerns. Thank you very much.

Witness Morris: Yes Sir. I’m a little emotional, sorry. I’m trying to let everybody know that I’m trying to tell the truth. That’s the only point I’m here for. I’ll take a 100 bucks. I’ll write a check right after this. I challenge everyone in this audience to take some money and put it together and let’s find a place for the track, not two miles from the hospital or less than two miles. I challenge the real estate people who are against it. I challenge this county to come up with some money. I’ve coached Rec. Department basketball. I’ve coached Little League baseball. I’ve coached girls in softball. I know the county has money that they use for recreation. I think you heard a presentation by these people that says this is a good sport. It’s a family sport, and it deserves a place. Perhaps, not where it’s at. That’s the only point. O.K there’s some stuff going on about db’s. I think most of what we heard here is hearsay. I think in the lawyer’s language. Maybe we need a study by someone that’s neutral to the whole thing that could come out and tell us what really is occurring and what we really hear. There is a difference between the noise that the motorcycles make, motorbikes make versus what I hear from the interstate and what I hear from U.S. 25. There’s absolutely no mistake. It’s an irritating sound. It’s kind of like, and I hate to use this example because I fuss at my daughter for doing it to me all the time - talking your fingernails on the blackboard. That sound irritates. Perhaps other sounds don’t irritate that are louder, so you’ve got to take that part of the noise into consideration when you’re thinking of noise. The wind and the weather play a big role as to whether we hear this noise or not. If the wind is blowing in our direction, we hear it. If the wind is not blowing in our direction, there’s probably a good possibility we don’t hear it. And I don’t know how many bikes you had out there yesterday. I don’t really care. I’m just going to tell you what I heard. When I stepped outside, you can definitely hear it. It’s an irritating noise. And I’m a mile away now, as you walk the railroad tracks as I walked them to see. I go back in my house and I’ve got a 2 x 6 stud wall in my house, good insulation, closed the door and I didn’t hear it. If I roll my window, one window open, I do hear it. So, that’s a tough call, it’s a tough call. You know in terms of how it’s going to irritate the hospital, the rest home and everything else involved. So, I’m a little disappointed in the engineer study and Mr. Bennett’s proposal. I think during the racetrack issue there was a lot of talk about – you can purchase sound barriers to put up around the racetrack. There’s no comparison between a racetrack and a motor cross track. Now I’ve been to both and know what… there’s no comparison to me on the noise. But in terms of the sound barriers that go up, I think there’s a lot of talk in the racetrack – I know I need to be talking to you. I think that’s probably what you said, but also I feel like I’m part of the community too. OK, well, OK you win. Sound barriers – I think there’s a lot of talk that you can purchase sound barriers that you can put around a racetrack to dampen the noise. Perhaps that’s an engineering study that could be taken under by Mr. Bennett, you wanna use the 100 bucks I’ll give you? Use it to do that. Let’s prove it. Let’s do it. Let’s do it the way it should be done. Let’s make sure no one’s harmed in the process. Let’s make sure that my 8-year old daughter, if she wants to go ride with Warren’s little girl, Lari, as they were talking about riding. Lari was gonna teach her how to ride, just give her a shot at it. If it doesn’t harm any of these people though, because we were here first. They, in particular, were here first in terms of the health care people, the homes and that sort of thing. Mr. Bennett, I don’t have any sympathy for in a way, in a way I do. But in terms of your investment, I don’t have any sympathy for you. You bought the property. Hey, this is America. You buy something, you get what you buy. You’ve got to find out the evidence first in terms of flood plain and all that. So investment wise, don’t have any sympathy. I do for the kids, do for the parents, do for the families and that sort of thing. We’ve got a cornfield down below me. I ‘ll never be able to do anything with that but plant corn in it every year. It’s part of the flood plain. Knew it when I got the land. If I made a bad investment, that’s my bad investment. I also have an acquaintance who knows Mr. Bennett very well. I have a little bit of a trust problem in terms of what this will become.

Chairman: Would you try and keep your remarks to just the evidence…

Witness Morris: Sure, O.K. There’s been a lot of cease and desist things delivered on the property. What I don’t understand is how someone can continue to do something with the county laws that say, no you can’t do this, but he continues anyway. I think the laws were written ‘as is’. If changes need to be made in order to allow this, those laws need to be changed first to allow him to do it. I think there’s probably a reason why the setback distances were made. If there was a reason then, doesn’t that reason still exist now in terms of the health care facilities? I guess the last thing I want to say is let’s try to find a way to build a track somewhere. I don’t – I’m not smart enough to be able to figure it out but let’s figure it out somehow, even if it requires barriers, sound barriers to be put up at the existing property or another piece of property. I don’t care, but let’s try to pl… I think both sides can be pleased.

Chairman: Mrs. Freeman, do you have anyone else.

Witness Freeman: Jack Reed.

Chairman: Is this your fourth witness?

Witness Freeman: No, this is my fifth witness.

Atty Beeker: Including you or excluding you?

Witness Freeman: Oh, was I included?

Atty Beeker: Yes, you’re included.

Witness Freeman: Let’s see now (1, 2, 3, 4), and this would be five altogether, including me.

Atty Beeker: O.K.

Witness Reed: I promise to be brief. Good evening.

Members: Good evening.

Witness Reed: I was at the track Tuesday night for the sound trials.

Chairman: I didn’t get your name.

Witness Reed: I beg your pardon?

Chairman: Name please.

Witness Reed: I’m sorry. Jack Reed. I live at 102 Cannon Drive, Cannon Woods, and I was at the track Tuesday night to observe the noise level trials. Before I left home, and this was after the motor cross vehicles were running. I could not hear it. But normally when they have the cycles running over there I cannot sit on my back porch, either Saturday or Sunday, when they usually have them, for the noise. I can’t enjoy it. I go in the house, close the windows and I still hear it. There was a big difference. I think that was the bare minimum number of vehicles that were on there. And many of them were the 250 cc’s, so these weren’t the big ones. They weren’t making the noise that they usually make. That was my observation. We were talking about the spread of noise, and I hate to mention it, but back when we had the asphalt plant hearings, we had some information from Cal. Tech. about thermal inversions and what it can do and it can spread both pollutants and noise for a 10-mile radius. That’s not mine, that’s from Cal. Tech. Citizen Hanley Lane’s several articles in the Times-News has covered the noise objections very well, I think. I have a personal feeling that we have a moral obligation to the patients and the residents of the health care facilities. They cannot move when noise is generated. Some of them are bedridden. Many do not have air conditioning and they must have the windows open. Why create ordinances to cover the protection of the health care facilities and then consider variances which will negate the original reasons? Martha Sachs covered the plate of the residents of these health care facilities very well, so I’ll just touch on one other item of that. I was the chairman of that same committee for four years and I was in every facility in the county – nursing home and adult care homes. I still go as a long-term care advocate to all these facilities, to many of the facilities, not all of them, and I talk to the residents, not the owners. The residents are dead against it. They can’t tolerate this kind of noise. The sign at the track says ‘a private club’ is posted, not open to the public. Who’s going to go in to observe proper or improper use if you’re not a member of the club? That’s brief as I can make it.

Chairman: Thank you. Any questions?

NO RESPONSE.

Chairman: Mrs. Corn, will you call the next party?

Mrs. Corn: Frank Cox.

Witness Cox: My name is Frank Cox. I am a moderately long-term resident of Henderson County. I live in Whispering Hills. My home is just a hair over a quarter of a mile from where the track is supposed to be, according to the map in the document packet we received. A few points I would like to bring out. Some of them will be redundant with things that have already been said, but I would also like to add my voice to those. Some of them will not be redundant. First of all, I’d like to add a little additional hearsay. I’m not an expert in sound, but just about 10 minutes on the Internet at various sites from experts shows that the reason people hear the sound differing from time to time is the fact that as the wind blows, we hear sound on the day when the wind’s blowing our direction or not. Sound is pushed around by air movements. Sound adds. So for instance, I-26 may be too loud for someone and it may not be too loud for someone else. The motorcycles alone may not, but if the sound is going the same way, those sounds are additive. And this is an interesting thing. When the gentleman was addressing us the last evening, he said that the difference between one motorcycle and another was only a few decibels, but at least three references confirmed that a 10 decibel increase equates into a twice as loud noise to the human ear. And it’s also very well known, the decibel meters do not simulate the human ear. So we hear a lot of things that are aggravating that may be the decibel meter doesn’t show up as being all that substantial. I would like to commend Mr. Bennett. I’m so glad I’m not standing up here the last time we met, because I’d have really feel like a jerk after all those kids were up here. I think they do need that. The gentleman that was just up here, I’d like to commend his statements that I think this is a great sport and we have the privilege to participate in dangerous sports. This is America. And I think we do need something like that. I’m just glad I didn’t stand up after all those kids were up here. I would have really felt like a turkey all the way around. But yet, I would like to say that I used to ride a motorcycle year round, 13 months straight. No other transportation. I even rode mine in snow. I don’t know about the rest of you. On the roads. That’s all I had, and I got back and forth, and I’m still alive and that was over 35 years ago. I’m not against this at all. I just think sometimes there are really good places for tracks and sometimes there are places that are not really good. I’m curious, as some people have already said, that a variance allowed would set sort of a precedence, maybe not a legal precedence, but it would set a precedence in the mind of the Board and perhaps other groups of people as far as the use of the land like this. I would like to ask - I don’t know if I’m allowed to, but does a variance set a legal precedence for future use of surrounding properties? Am I allowed to ask the attorney that?

Chairman: You’re allowed to ask. I don’t have an answer for you. I guess my first reaction would be that it does not. You have to look at each case on it’s own merit.

Witness Cox: O.K. Another issue all together. The gentleman last time said to consider how close Route 64 was to Pardee Hospital, and then why would that be so close with the noisy thoroughfare that it is, and yet this be a problem for the local residents. I would like to submit that Pardee and 64 are as close as they are because of the evolution of the county and not because of the planning of the county. It just happened that way. I’m wondering if the plan for the use of the property would not include sanctioned races, would that guarantee that sanctioned races would never occur on that property? Would that be a guarantee that they wouldn’t? I’m also curious if the property were subsequently sold would the future owner be able to maintain whatever privileges he gained through the variance, but yet make different uses – expanded uses? So that’s a question that comes to my mind and I’m sure you all have some of those same questions. The last thing that I would like to say is I’m amazed that at the age of 25, the noises that didn’t bother me at all, that today irritate me at the age of 50, but I have grandkids and kids, and I do think this track is needed somewhere. I really do, but I don’t think this is a good place. Thank you.

Chairman: Any questions for Mr. Cox from the Board?

S. Baldwin: Where is your property located Mr. Cox?

Witness Cox: Whispering Hills.

S. Baldwin: Whispering Hills?

Witness Cox: And it’s just - according to the map it’s a hair over a quarter of a mile from where the track is proposed.

S. Baldwin: Thank you.

Chairman: Any other questions? Mrs. Corn, will you call the next party.

Atty Beeker: Did you have any witnesses?

Chairman: Do you have any witnesses Mr. Cox?

Witness Cox: I did but neither of them are here.

Mrs. Corn: The next party is Chuck Pressley.

Chairman: Mr. Pressley, do you have your affirmation on file?

Witness Pressley: It was on file when I was the first person told to be contested at our first meeting, I think.

Chairman: O.K., thank you.

Atty Beeker: For all those people who signed an affirmation at the last meeting, you are still under that. I just wanted to remind everybody of that.

Chairman: O.K., Mr. Pressley, while you’re doing that, I think we’ll take about a 10 minute break, if you’ll take care of that. If you’re a party to this and you have not signed your affirmation, during this about 10 minute break, would you be sure to see Mrs. Corn and get that taken care of. We’ll come back around 8:15.

BREAK.

Chairman: Mr. Pressley, if you will return to the microphone.

Witness Pressley: Thank you. I apologize for that mistake, but it was nice to have a break. My name is Chuck Pressley, and I live at 39 Foxfire Lane. That’s in the Foxwood Subdivision. We have lived there for six years and as of December I am the current President of the Foxwood Property Owners’ Association which represents 59 property owners, 44 of those property owners have residences in the subdivision known as Foxwood, and I am here on behalf of our Property Owners’ Association to request that you not honor these variances as requested by this group here. For the past two years during our annual meetings it has been a topic of discussion, the racetrack and the noise and our concern over possible negative impact on our property values. When we became aware that there would be a planning meeting we had had one of our board members attend and we have notified our members of our Property Owners’ Association that we, as a Board, have voted to speak against the support of these variances and we have received no negative comments back from our property owners as we have gone through this process and kept them informed and solicited their input so I feel like I can say that I do speak for all of our property owners to say that we would request that you not honor these variances. I do have two witnesses that I would like to have speak at this time. First, Mr. Robert Payne.

Chairman: O.K. before that, does anyone have any questions for Mr. Pressley?

S. Baldwin: Foxwood is located where?

Witness Payne: My name is Dr. Robert Payne, and I reside with my wife, Nancy, at 70 Hounds Chase Drive in Foxwood, just under a mile from the property being considered for a motor cross track during this public hearing. I recently retired from the United States Environmental Protection Agency, where I spent more than 30 years in water pollution and human health research. I have a Bachelors Degree in Biology and Geology and a Masters and Ph.D. in Geology. There are several concerns that I would like to address regarding this proposed track. The first concern is the proximity of the track to Mud Creek, an important Class C tributary of the French Broad River. As stated by Diane Silver of the Cooperative Extension Service in her review of this application, ‘the proposed motor cross racing facility by it’s very nature causes land disturbances as a result of normal ongoing operations. The entire track site consists of bare, loose soil with no vegetation to hold it in place.’ At present, Mud Creek is listed in the State 303-D list of impaired water bodies for non-support of aquatic life. The North Carolina Division of Water Quality has reported that sedimentation is the foremost pollutant contributing to the degradation of this stream and that storm water runoff is a significant contributor to sedimentation of the creek. The activities at the track will produce more than just loose soil. Oil and rubber will also be deposited onto the track, parking areas and the fueling area surfaces during normal operations and will be included as pollutants in the runoff that goes to Mud Creek. The applicant has presented information to the Planning Board and in this hearing that he proposes to irrigate the track, to mitigate dust during dry periods by pumping water from the stream onto the track area and has included in this application – I’m not sure if they are his photographs or from the Planning Board, but has included a series of photographs that show large hoses and drainage ditches that bring water to the irrigation system and then drainage ditches that return runoff and flow back to the adjacent creek. In essence, the applicant is proposing to greatly increase the non-vegetative areas of this property, which will enhance erosion, and by pumping water onto the track areas, he will further increase sedimentation to Mud Creek. The applicant proposes no treatment of runoff. Of greater concern to me and to my neighbors are the elevated levels of noise that will be generated by the track activities. If approved and I underline that if approved, the application requests ‘up to 300 patrons and riders’, and the daily hours of operation between 10:00 a.m. and 30 minutes before sunset at the facility. Typically, 85, 125 and 250 cc motorcycles produce between 85 and 95, or more decibels of sound and the racing conditions at a motor cross are of acceleration up to 10-, 12-, 13,000 rpm and then deceleration as they go over a hill and make corners, around the multiple turn racetrack, will obviously produce a broad spectrum of noise that will at least be those decibel levels at the property boundaries, if not higher. The majority of these bikes would not be street-legal. They’re brought in on trailers due to the fact that they have increased noise emissions and they lack lights and turn signals and proper licensing for on-road use. In numerous cases around the country – we get into that famous hearsay – similar tracks have generated complaints by nearby neighbors, nearby residents, due to the noise they generate. For example, in a recent legal court case in Wayne County, Ohio, residents who lived in homes from 1000 feet to a mile away, testified that the sounds they heard at their residences during a running of motorcycles at the motor cross course included descriptions such as, and I will quote from the case: ‘highly pitched, nerve-racking, annoying, not pleasing, intolerable, irritating, noisy, sharp, unrelenting and high pitched, obnoxious, ear piercing, aggravating, angry’. Several residents that lived closer to that particular track testified that they could hear the motorcycles on the racecourse from within their homes even with all the windows shut. So, within 1000 feet. The noise generated by motorcycles, by motor cross bikes on this track in Henderson County will be no different. The bikes are no different and because of the location in the bottom of a valley sounds will likely be carried to higher elevations much farther than if on level terrain. My home is on an elevated bowl-shaped hill, part of the Stoney Mountain complex, to the west-southwest of the applicant’s property and will capture more sound than normal. We’re all familiar with the famous ‘you put your hand behind your ear’ to capture more sound. Indeed our entire neighborhood is in a bowl that faces this motor cross track and so will have a tendency to capture more sound. From my yard, I can hear I-26 traffic, which is beyond the track area. Even during daylight areas because of the capture effect. I wish to go on record that I support the type of activity for our youth and for our young at heart, but as suggested by Susan Henley Lane in her Life In The Middle column in the Times-News earlier this week, this is not the appropriate location for a motor cross track. I urge the Board of Commissioners to deny the variances and to deny this special use permit application. Thank you.

Chairman: Any questions?

NO RESPONSE.

Chairman: Do you have another witness, Mr. Pressley?

Witness Pressley: Yes, I do, Ralph Turnberg.

Witness Turnberg: Mr. Chairman and members of the Board, I want to thank you for giving me this opportunity. I wanted to go back on an item that Karen Smith had talked about earlier having to do with the noise mitigation in Section I. Previously, all we have heard about is the problems that are derived from having a nursing home or health care facility within the two-mile radius of the track, but in Section I under the Noise and Mitigation – where it says ‘a good faith effort to reduce the noise effects, if any, that the principle use may have on the neighborhood’. This is the first time that I’ve seen the word ‘neighborhood’ and not just a health care facility. And it says a neighborhood is an area impacted by a principle use. At a previous hearing, the statement was made that while the track was operating – I don’t know when that was – a couple of years ago – that no one complained about the noise. I heard the noise but I made the rash assumption that this was something that was allowed by the county and never said anything. Once I determined that I had a chance to speak about the noise I was at the Planning Board Meeting and I want to remind you, of course, that the Planning Board unanimously turned down this application although it didn’t deny the – recommended that it be denied. One item that had to do with a letter that was received from Heritage Hills has to do with a letter from M. Susan Wolfker – Heritage Hills Retirement Community has not complaint. Again, Karen Smith indicated that there are, in deed, two separate facilities there. The retirement community is not the health care facility. The health care facility is a nursing home and I don’t see a letter from the administrator of the nursing home saying she has no objections to this racetrack. Now the last item I would address having to do with the nature of the noise. The decibels are one thing and noise abatement and whatever you can talk about it all you want, but the noise of a two-stroke engine is irritating and we can hear traffic on I-25 but it is a low frequency noise. It’s more like a mountain stream than anything. But a two-stroke motorcycle is more like a dentist drill or something. When you have a chainsaw running for eight hours it is indeed objectionable. So I would hope that you would concur with the Planning Board and agree with their decision to not allow these variances. Thank you.

Chairman: Any questions?

NO RESPONSE.

Chairman: Thank you sir. Mrs. Corn, will you call the next party.

Mrs. Corn: Janice Moore.

Witness Moore: Good evening. I’m Janice Moore, and by looking at the map, I believe I’m about 5 to 6 tenths of a mile. Do I need to do something?

Chairman: Did you give your affirmation statement to Mrs. Corn?

Witness Moore: Yes.

Chairman: Did you file it with Mrs. Corn?

Witness Moore: OK, I thought I had given her one last time, but I have my witnesses ones with me and I have mine too. Well, it is in here, I’m just not putting my finger on it.

Chairman: Would you like to sign a new one?

Witness Moore: Here it is.

Chairman: O.K. Thank you.

Witness Moore: Thank you. Well again, I want to iterate, we’re not here – this is not the ‘People versus the children of Henderson County’. We are here because, in fact, I can’t believe we are here. We’ve spent two years working very hard on an ordinance about motor sport facilities. I was involved in that. I can’t tell you how many countless hours that we spent on that. How much money was expended on that, how many hundreds of people showed up at all the meetings supporting this, and why we are even here is beyond my comprehension. What I feel like the issue we are dealing with here is whether or not we are going to ever have the planning involved in this county and whether we’re going to stick to it. If we are going to make rules are we gonna keep them? Are they going to change tomorrow? My home has already been ruined because of lack of rules, visually. Now is it going to be hearing also? And what’s gonna come next? It just seems like for five years all we are doing is fighting one thing after another and I would like to feel that once that we work hard to get some ordinance or some planning in this county that we don’t have to turn around and fight it again. The hours that we are spending, the nights that we are losing by even having to attend these meetings and fight something that has already been decided upon once is just beyond my comprehension. I’m hearing a lot of – well for instance, I went down to listen to the noise checks the other night. I found the place by the pillar of dust that was billowing up in the air when I – I just followed the dust cloud and found the place to start with. So I think there’s gonna be a little problem with pollution here to start with, and I cannot, in my wildest dreams, fathom how we can have a noiseless racetrack, unless it’s gonna be an indoor facility and I haven’t heard that spoke about yet. So I do have some serious concerns about this. I mean I do think a motor cross ¼¼ TAPE RAN OUT

Witness Moore: but dealing with variances in my business, I mean usually we are talking a variance of a couple of feet or six inches or somebody that wants to put a little business in their basement that none of the neighbors will even know is there or something. We’re not talking about that. We’re talking about a major, major variance here from what was originally planned, and I just think that we should uphold the few laws that we do have in the county that we have worked so hard to get instated here. And that’s all I have to say, except I would like to call my witnesses. And the first one would be Glenn Clark.

Chairman: Did you have witnesses listed previously?

Witness Moore: Yes, I did.

Chairman: Does anybody have any questions for Mrs. Moore before… Mrs. Corn, do we have Mrs. Moore listed as a party?

Mrs. Corn: Yes.

Chairman: O.K.

Witness Moore: O.K.

Chairman: Any questions of Mrs. Moore?

NO RESPONSE.

Witness Moore: Thank you very much.

Atty Beeker: Who’s your first witness?

Witness Moore: My first witness is Glenn Clark.

Witness Clark: Hi, my name is Glenn Clark. I live across the interstate from the track. I live next to Whispering Hills Subdivision, maybe a half mile from the location of it and all I wanna say is that anytime I’m outside and the cycles are running you can hear them clearly. The other night when they were testing it sounded like they were more or less out in my front yard and this is above the noise of the interstate noise and we hear it loudly at my house also. If you’re in the house and have a window open you hear these cycles which we do not leave windows open because of this. And, by the way, I have two hearing aids, so I still hear it and that’s basically what I have to say.

Chairman: Any questions?

S. Baldwin: Where was your property located?

Witness Clark: It’s located on Glenwood Lane, next to Whispering Hills Subdivision, between Whispering Hills and Fletcher Academy property.

S. Baldwin: O.K. Thank you.

Witness Clark: Really, I guess I would be considered part of Whispering Hills.

Chairman: Any other questions?

NO RESPONSE.

Chairman: Thank you Mr. Clark. Who is your other witness Mrs. Moore?

Witness Moore: I have, actually, three others. My next one was Karalee Clark.

Chairman: Mrs. Clark.

Atty Beeker: Is she a minor witness?

Witness Clark: I’m a minor, definitely. Good evening. My name is Karalee Clark, and just in case you wondered, Glenn is my husband. I think the last time we someone came to your Commission meeting, Glenn talked about the Zoning Ordinance that was going in place and made a proposal and asked that our property be unzoned like the hospital and the academy since our property adjoins and you all were gracious enough to consider his request. I’m here on behalf of young people. I, too, at a younger age, had a motorcycle and had a son with a 3-wheel ATM vehicle and it was very difficult to find a place to ride. So I am very sympathetic to that. In fact, Glenn ended up building a trailer so we could trail his cycle so he would have a place to ride. So we are well aware of the importance of doing these kind of activities. When this cycling first started we understood from neighbors in Whispering Hills that it was a family owned operation and it was just family members and we were rather shocked to find out that it was much larger than family. And at the time we first heard it we wondered what in the world it was. It sounded just like a swarm of bees right over your head so you were constantly looking over your shoulder and Glenn and I both have busy careers so our time at home is limited and when we are home we’re outside. And so it makes it really difficult when you hear this undulating noise that goes up and down as they accelerate and then decelerate and those kind of activities. I am also a member of the Board of Health. I am the nurse representative for the Board of Health and you all probably know that. Several years ago the Board of Health sent a recommendation to the County Commissioners regarding air pollution. The quality of the air that is in the mountains that most of us are very well aware of, and so this whole activity brings up that question in my mind but it also brings up the question about noise. It was at my insistence that Glen got his ears – that’s what I call them – because he became more and more difficult to communicate with and hearing is one of those things that occurs with aging that you start losing. So when I came to the last meeting – I know that I have one minute left – I see that, the one thing that really concerned me was the fact that everyone thought it was an age thing. This is just something where the older adults don’t want the children. And in our community, there’s a huge amount of people walking in the neighborhood constantly, so there’s a lot of outside activities and most of those people are older adults, without question. In researching for this I found an article and I brought it to turn in as witness. It is from Time Magazine, April 4, 2004. The title of the article is Just Too Loud. It talks about the decibels and all the sound that surrounds us. It talks about the OSHA requirements, and a statement in here that really got my attention was ‘a single noisy motor scooter driving through Paris in the middle of the night can awaken as many as 200,000 people’. There is strong evidence that is coming out from NIH that indicates that the constant bombardment of noise in our society we know it’s affecting our children, because we have more people coming into the work place who can’t hear. And then we also know that it’ causing increase in hypertension, heart disease and depression. Thank you.

Atty Beeker: Did you intend to offer that into evidence – that article?

Witness Clark: Yes.

Atty Beeker: I guess you would be the one doing it? Do you object?

Witness Bond: Good evening Commissioners. Thank you for letting me comment. Let me say that I’m a fellow who couldn’t hold a job. I’ve had at least three different careers and each one bears on this. I started my career in public … and air pollution control. I also ran the air pollution control agency in Durham so I have a little knowledge about that. I have been a general contractor and I have asked for variances on one way or another for building properties so I know a little bit about variances. And I have been general manage of the company that owned two of the health care facilities that are within the radius that are being in question today. So I speak from each one of those perspectives. First, let me say that I was born at night, but I wasn’t born last night. And for a gentleman, any gentleman, to stand up and suggest that we are not going to hear 20 or 30 screaming two-cycle engines anywhere off the property insults my intelligence. Where I live, and I live at 515 View Rock Lane, and I should have said it, up on the side of Stoney Mountain. I look right over the property and I’m less than a mile the way the crow flies. I hear trucks stopping and starting at the Interstate. I hear dogs barking on Mountain Road. I hear airplanes taking off from the airport. Sound does rise, and I certainly hear it. So the most of who won’t hear it, I think is … and I would reject that out of hand. Secondly, I am concerned about the pollution. Two-cycle engines, and most of these motorcycles are two-cycle engines are the most polluting engines we’ve got on the planet. I’ve got a lawn mower. You’ve got a lawn mower. They’re just as bad, but at least the owers are scattered out all over Henderson County. We don’t all run them on the same day. But we’re going to have a problem with those machines. They’re in a natural bowl. We have thermal inversions in this area. I see it from my house and watch the smoke rise 25, 50, 75 feet and then it just flattens out on lots of days and that’s what we’re going to have. It’s just like a lid on a garbage can and unfortunately we’ll see it, not every day but we will see it at some points in time. Third, in my life as a general contractor, I have had lots of occasions where I approached Boards and suggested that we need to expand a house and the law said 50 feet and we couldn’t get but 49 feet 6 and a quarter inches. A matter of inches, a matter of feet. Certainly that’s what a variance is designed for but when you’re asking for a variance not over 1/6^th of a mile or 1/3 of a mile or half a mile but a mile and two-thirds out of two miles, I suggest that goes way way beyond the spirit of a variance. And lastly, in my previous life I’d suggest I was General Manager of Aaron Enterprises and we operated two of those facilities. I spent hundreds of hours in both of them. I was pretty eminently known to those residents. Those are old people. If they could be here they’d be here tonight telling you – we don’t need that additional noise but they are bound to their beds. Their bound to wheel chairs and they just can’t get out and say that. Their health is poor. They have difficulty breathing, difficulty sleeping, just as was suggested here before. So, for that reason I also ask you to not consider this variance. I’ll close by saying that Henderson County needs a facility. I’ve got grandchildren, and they want to ride bikes. And I rode a bike in college for four years, and a small cycle. I know it’s fun. It’s important to the kids. We need a place but we don’t need it here. It’s too noisy. It’s going to be a major source of pollution for that area. It defies the spirit and the notion of a variance where again, not a matter of inches but a matter of 85% of the variance area and it’s too close to at least 12 health care facilities in the area. We’ve got laws on the books to protect us from this very sort of thing and I urge you to uphold the law that you are elected to uphold, and secondly, uphold the recommendation of your Planning Board which studied this matter very carefully. Thank you.

Witness Moore: My last witness is Dr. Burton Keppler.

Chairman: What was his name, I’m sorry?

Witness Moore: Burton Keppler.

Chairman: Keppler, thank you.

Witness Keppler: Good evening.

Members: Good evening.

Witness Keppler: My name is C. Burton Keppler. I’m a retired Anesthesiologist. I live with my wife, Dorothy, at 223 Astor Court, Hendersonville. I was the Chief Anesthesiologist at Park Ridge Hospital for many years prior to my retirement. Growing up, my father had a motorcycle and I enjoyed riding on a motorcycle. It’s fun. However, in my years of practice I cared for many of what I call ‘murdercycle victims’. Many, many of them. While as Americans, we are free to do what we want, and I can do unwise things. Is it fair for me to do something unwise and ask you to pay for it – to pay for the results. You see, those injuries are very expensive to care for and many times the people don’t have insurance and the health care facility and those providing the care don’t get paid. I have experience that many times. So if you were to give this variance I think one of the requirements you should have is that the owners should have to have adequate insurance to take care of any injury that occurs. They can charge fees for using the place to pay for that insurance but they should have to have insurance to pay for the fees and not ask me to pay for it again. I contributed enough free service for that type of thing in the past and as a retired person I don’t have a lot of income and I don’t care to pay for it. I have one other comment. The fact that on the weekends when there are motor sport activities the emergency room and the operating rooms are much busier than usual. I know about that from experience. And so it’s just a thing that we need to consider. If they’re going to do it they should have to pay their own way and not ask the general public to pay for it. I appreciate your time. Thank you.

Chairman: Will you call the next party, Mrs. Corn.

Mrs. Corn: Mark Wright.

Witness Wright: I’m Mark Wright. I live at 80 April Lane next to Fletcher Academy, next to Park Ridge Hospital, approximately one mile from where the track is at now. Actually I just recently moved to Henderson County within the last three or four months but I do have family who lives there in that community. My mother-in-law and my sister-in-law both own property at the same place where we live. So I guess what I am hearing here tonight is that we all have issues with sounds. Some sounds are more irritating…

Chairman: Can we get your affirmation before you continue?

Witness Wright: I’m sorry?

Chairman: Can we get your affirmation?

Witness Wright: Actually, I think I had already signed one earlier.

Mrs. Corn: I don’t have it.

Chairman: Again, I remind you. If you’re going to be party, if you would be sure you have the yellow sheet signed so that we can proceed on with some expediency.

Witness Wright: Thank you. The noise test. We spend some time out on my front porch which is approximately about a mile from that area. And to be honest with you I came from the country. I used to live with in Candler where everything is quiet except for the occasional chain saw or something but what’s really struck me most about the area is the fact that the interstate noise is more prevalent than anything. I heard someway say it’s a babbling brook and I would disagree with that totally. That noise is more prevalent than anything out there - is the sound of the interstate and now you’re adding a 5-lane highway to 25. Those are some encompassing sounds right there. I do have some input about Mr. Bennett. I have been a real estate agent for 14 years and I sold Mr. Bennett the property when he purchased it. What he was looking for was a recreational place for kids to ride and the thing just escalated. People found out about it, more people wanted to come. So the question is you are asking is why is there a variance meeting here. I’ve heard a lot of people say that and this is the avenue you take, you know. You can’t stop these things. You’re never going to stop somebody asking for a variance for something. There’s always going to continue, so I mean – yeah, you have your right to give your voice here and so on and so forth. I know for a fact that when Mr. Bennett purchased this property he made inquiries to the Henderson County Zoning Board to find out if this was something that would fall in line. And I know that on two occasions he reported to me that this was something that could be done there, and his bank, his lending institution, Blue Ridge Savings Bank, talked to someone at the Zoning Board. They faxed him a copy of what the uses were and they seemed to think there would be no problem at that time. So, does he have a hardship? He’s got a mortgage on this place and I think that’s a hardship. A hardship that could break the man if he doesn’t find some sort of way to evolve. Now I know Mr. Bennett. I’ve known him all my life and if he says he’s here willing to work with all the community to say, hey listen, let’s find a way to do this that everybody can be happy, then maybe we should look at that from that viewpoint and say – what can we do? I’ll put it this way. If you live in this area, you knew you had an interstate there, you’ve got a train track that runs right through the property as well, there’s a lot of noise there anyway. To say that that’s going to affect your property values on limited operation, I don’t really think so. And that’s speaking from a real estate agent’s viewpoint which I’ve sold about 50 million dollars in real estate in 14 years. A lot of people wouldn’t pick those places to live because there was interstate noise. That would be the first reason they wouldn’t look. It wouldn’t be the fact that there was a motor cross, right now if you lived right next door to it I could understand it but you’re always going to hear things especially in this part of the country where there’s continuous chain saws running here, it seems to be. You always hear that or you hear somebody run their lawn mower or there’s something that’s going on that’s producing noise. It’s just a high noise area. And I put to you if not in an industrial park, where then? Where then do you find a place to put this because if you came out into the country where I thought it was gonna be quiet and you put it in there, I’d really be upset. It just seems to me that if you give Mr. Bennett the chance to work with you in some form or fashion he will find a way to make it where it’s tolerable for everyone. And I think that should be brought into consideration at this point. But I would just say this much, my testimony here tonight is that Mr. Bennett did go to great lengths to try to find out if this was going to be a problem. He may have been misinformed. That may have been the situation. I wasn’t there when he talked to the Zoning Board and the Planning Board, but I know he did take strides to do that. I know his bank took strides to do that, and now he’s in a situation where his financial future is on the line. So, in my opinion, if that’s not a hardship, nothing is. There’s nothing more than a hardship than that when absolutely your family’s livelihood is on the line here. So that’s all I had to say about that. Thank you very much for your time.

Chairman: Any questions for Mr. Wright?

NO RESPONSE.

Witness Wright: Thank you.

Mrs. Corn: Douglas Dunlap.

Witness Dunlap: Mr. Chairman and Board. Douglas Dunlap. I live at 331 Brookside Camp Road. I’m the third generation to live at that address. It’s literally up the creek if you will. Actually, it’s south of there, half a mile from the proposed racetrack. I’m right across from the Double T Golf Center, so you’ve got a pretty good idea where that is. I did call a year ago and spoke with the County Manager and the Planning Board, so it’s not like I just decided to show up here and say, hey, I don’t want this in my back yard. So I did pursue this a year ago and they were unaware that this was going on. Well, obviously, they’re aware now. So that’s why we’re here. Little did I think that I would be here either, but here we are. At the previous meeting that we had here, Bill Harper, Jr. spoke on behalf of the motorcycle dealers in Henderson County about the importance of commerce and employment, etc. in Henderson County, and nobody applauds that any more than I do. I work for a small business just down the street from the Harpers, and I promote employment and commerce. We need more of it. I do understand racing very well. A comment was made earlier. I’m not retired. I understand motor sports and am probably as versed as anybody in here about the performance vehicles, what makes noise and what doesn’t, and what I hear from this motor cross track is noise. I’m smart enough to know that. I have nothing against Mr. Bennett or any of these motorcycle folks, I know a lot of them as I look across the audience. The Planning Board’s already talked and passed their recommendation to you. The biggest thing I’ve got on my list today is should you guys and gals approve this thing, who’s going to police this. You know, who’s gonna limit and monitor the number of vehicles down there, the activities, the size, the lights, you know the days, etc. I really question that the most besides the noise thing. Again, I’m a half mile away. I hope you’ll consider that. I don’t think any of you folks live that close, and in closing, my hat’s off to you. I wouldn’t be sitting up here where you guys are for the world, because ultimately, when it’s over, somebody’s going to be unhappy and somebody’s going to be happy. Right now, I don’t know which way that’s gonna to go, but I commend you and the preparations these ladies have made on all this documentation and stuff. It’s quite amazing the depth you folks have gone to to prepare and look at it every way you can. So I’ll close my comments for the sake of being repetitive. I do have a major witness and three minors.

S. Baldwin: I have a question?

Witness Dunlap: Sure.

S. Baldwin: You said you live down stream, up stream from…?

Witness Dunlap: Actually, if you’re at the racetrack, I would be south towards Brookside Camp Road. I can stand on my front porch - I look, on 22 acres, I look at Mud Creek, and I’ve lived there 47 years of the 100 year flood plain and I can tell you all about the water on Mud Creek.

S. Baldwin: O.K. So you have property in the flood plain?

Witness Dunlap: Yes.

S. Baldwin: And you said you live on a farm? Did you say that?

Witness Dunlap: Yes, yes I do.

S. Baldwin: And what kind of agriculture activity goes on where you live?

Witness Dunlap: Well presently, we put up about 2,000 bales of hay and we have about 30 head of cattle on the place at this moment.

S. Baldwin: So you cut hay off your property that’s in the flood plain?

Witness Dunlap: I do.

S. Baldwin: And you have cattle that’s on the property in the flood plain?

Witness Dunlap: I do.

S. Baldwin: O.K., thank you.

Witness Dunlap: You’re welcome.

Chairman: Any other questions?

NO RESPONSE.

Chairman: You may call your witnesses.

Witness Dunlap: My major witness is Robert Dunlap.

Witness R. Dunlap: Good evening.

Members: Good evening.

Witness R. Dunlap: I am Robert Dunlap, the father of the gentleman that just spoke. I’ll have to make one correction. He said the third generation. I am the sixth generation to have owned this farm. And also I am a dual property owner. I own the first house that was built in Grimesdale approximately 50 years ago, and my main concern about this property is – like I say – the farm is approximately a half a mile. My residence in Grimesdale is approximately a mile. My objection to this is the noise, but first let me say that it has been referred to as “only in an industrial park” and there has been several comments made about I-26, 25, airplanes and all that. To me, this industrial park is a necessity, just like I-26, 25 and so forth. I, myself, am a retired industrial employee – 37 ½ years at Ecusta Corporation in Brevard. And all I can say in regards to this industrial park – it is one of the cleanest, quietest parks in Western North Carolina that I know of. Like I say the farm joins this property and I have no complaint with the industrial park, but to the other part, the proposed track - no sir. Can’t go that way. And also, we would like to see the industrial park remain as it presently is. So it is my recommendation that the Board, the Chairman and the Board, support the Planning Board and decline this operation. And in closing, I would like to add one thing. I was present at the testing day before yesterday, and there is quiet a bit of difference in when I picked beans there 60 years ago. That land has been and could be used agriculture again. Thank you.

Chairman; Thank you Mr. Dunlap. You want to call your next witness.

Witness Dunlap: Certainly. I would call Jay Rogers.

Witness Rogers: I’ve handed in my signature. I’m Jay Rogers. I live in Hendersonville in Hickory Hills, which is off of Brookside Camp Road. I’m a member of the Henderson County Environmental Advisory Committee. I am very concerned with the sedimentation pollution of Mud Creek that the site will cause. Mud and clouds of dust is certainly part of the appeal and fun of motor cross. Permanently situated next to a water way, it would have a catastrophic effect on the water quality. I believe that compliance with the North Carolina Sedimentation Pollution Control Act must be accomplished prior to issuing a variance or permit. Now compliance requires that the mud must be kept on the site. The mud must be kept out of the stream. A buffer zone along the stream must be provided. Ground cover must be established on the site, and there be a certificate of plan approval from DENR, the North Carolina Department of Environmental and Natural Resources. If all that isn’t done, I fail to see how a variance or permit can be granted, and I’d like to submit in evidence the proceedings of the last two EAC meetings that have dealt with the technical and regulatory aspects of sedimentation, which you all have in your office. O.K. Thank you.

Witness Dunlap: Eva Ritchey.

Witness Ritchey: Good evening. I’m Eva Ritchey, and I’m here at the request of Paul Donahue, Chair of the Henderson County Democratic Party, to speak on behalf of the Henderson County Democratic Party. One of our greatest Presidents, Franklin Delenor Roosevelt, said “if you treat people right, they will treat you right 90% of the time”. Now I’m not sure if that bit of wit at the end was from discouragement or a call to reflection, but treating people right and the 10% who insist on self-interest are the two most important rationales for land use planning. A comprehensive land use plan that is flexible enough to extend variances but accommodates them rarely is a necessity for any community that wishes to grow in an orderly and hospitable manner. The Democratic Party of Henderson County supports a comprehensive land use plan and believes the current controversy surrounding the proposed siting of a motor cross track in the vicinity of a hospital facility is a direct result of the current county administration’s failure to act in a timely manner…

Chairman: Ms. Ritchey, would you limit your comments to current information for this particular thing and not a political statement.

Witness Ritchey: I will. Excuse me Sir.

Chairman: You’re excused.

Witness Ritchey: Sir, I’m sure you’re not trying to set the precedent that the voices of 18,000 people in this community do not have the right to three minutes.

Chairman: … 18,000 people, we’re having a hearing hear for a specific purpose.

Witness Ritchey: That’s fine.

Chairman: Not for a party statement from the Democratic Party

Witness Yeazell: My name is Paul Yeazell. I live in Cannon Woods. I consider looking at the map. I’m about, a little less than half a mile from the track. My wife and I retired here 15 years ago. One of the greatest attractions was the natural beauty and pleasant environment, priceless treasures enjoyed by natives and newcomers alike. But for some of us, the value of our homes and the peace of the place is threatened by the motor cross. Let me comment on the nature of the noise. Much noise has a rather constant volume level. The sound of traffic on I-26 is with us almost all the time, but it’s a hum that doesn’t change much. I can hear it. Lawn mowers have a predictable volume level, rising and falling gradually as they come closer and move away. I can adjust to these sounds and focus on what I’m doing or thinking. Some noises, like the sound of a passing railroad don’t last long, and some are even pleasant although the train’s whistle can be intrusive. But I know it’s a necessary warning and the train and its whistle will soon pass on. The sounds of the motor cross are different. I experienced them last summer when the track was operating illegally. They were not something that I could push onto the back burner of my consciousness. The shrill peaks and sudden roarings as the bikes suddenly sped up or slowed down cried out for my attention and made me retreat indoors behind closed windows. Even then the irritating sound often penetrated. It wasn’t a question of db level, the loudness. It was the surging and ebbing, the nature of the noise, and unlike the train whistle, it did not go away. It was there throughout the day and even into the night, and I knew it would return the next day and the next week. In the twilight of our lives, my wife and I enjoy warm days when we can open the windows, feel the breeze and enjoy the sound of the birds at a time when the mail brings weekly notices of how businesses are protecting our privacy. We ask you Commissioners to protect the privacy of our place. There seems to be a need for a facility like the one under discussion but it shouldn’t be here where it can invade the lives, not only of many home owners, but those who are sick in the hospital or confined to rest homes, perhaps in their last days. Not here where it can shatter the peace and natural beauty of a special place. I urge you to follow the unanimous recommendation of the County Planning Board and deny variances from established Ordinances. The Petitioner’s track belongs elsewhere, not in this place. Thank you.

Witness Dunlap: Is Stan Kumor present? I had him listed also as my. It is my negligence in not announcing it previously.

Atty Beeker: Is he major or minor?

Witness Dunlap: Minor.

Chairman: How many witnesses did you have?

Atty Beeker: They’ve all been minor except for his Dad.

VARIOUS TALKING BETWEEN MEMBERS AND PARTIES, SOME NOT AT A MIC. (Can’t really hear what is going on.)

Atty Beeker: Is it the pleasure of the Board to admit it along with all the other?

Chairman: I don’t know what it is.

Atty Beeker: It’s a document and Mike’s objection is that it’s hearsay and so…

Witness Kumor: A text book on physics is hearsay?

S. Baldwin: We’ve been entertaining hearsay all evening.

Witness Kumor: Yeah, I guess so. Can everyone hear me. O.K. I would like to address a possible misconception about noise and noise levels as put forth by the gentleman from Florida. He stated that a single motorcycle produced a noise level of 96 decibels and that an additional bike would only add 3 decibels to that and that each additional bike would likewise add just 3 decimals. The impression being given is that one additional bike increased the noise level about 3% and then by doing the math, 15 bikes would produce 138 decimals, O.K., around a 40% increase. Well unfortunately, the decibel scale is like the Richter earthquake scale, it’s a logarithmic scale and not linear. An 8.0 earthquake is 10 times stronger than a 7, and a 9.0 earthquake is 100 times stronger than a 7.0. O.K. So, on the decibel scale, a reading of 100 is 10 times stronger than the intensity of a reading at 90, and a reading at 110 is 100 times more intense than a reading at 90, O.K. Now, intensity and volume or loudness are many times interpreted to mean the same thing. Technically, they have very different meanings. Intensity is the measure of the power flowing in the wave, while loudness or volume is the appearance strength of the sound sensation as received by the ear and interpreted by the brain. Now volume or loudness, thankfully, is not directly proportional to intensity, so it doesn’t go up, the loudness doesn’t go up 10 times, but volume, however, does double with each 10 decibel increase in intensity. Therefore, a sound of 106 decibels is twice as loud as a sound with an intensity of 96 and so on. Thus, a 136 decibel sound level is 16 times as loud as a 96 decimal sound level. So, two bikes running together produce a sound only 40%, not 3%, louder than one bike, but 15 or 16 bikes will produce a volume equal to 16 bikes, 16 times one bike. I have provided each of you with a handout that I prepared which has a chart of relative volume versus decibel scale and the number of bikes. The reference used to produce this chart is a physics book used in the Henderson County High Schools here at West Henderson, and I have included a relevant page in the handout. I attended the demonstration on Tuesday and the demonstration on Tuesday was nothing like a race event. It was a practice event in my estimation. I was able to find the location. I had never been there before but I was able to find it like another gentleman by the cloud of dust coming up and my concern is that the dust is probably more of a concern than the noise. Fine particles of dust will travel two miles, and if you are in a hospital with an asthmatic condition or in a nursing home where you don’t have air conditioning and you have to have the windows open, this could be detrimental to your health. It could kill you. And so when I went there the demonstration was nothing like a race. There was 10 bikes on the track at one time. They were spread around the track, and most were at less than full throttle. As described, you would have 15 to 16 bikes lined up at a starting line with the riders revving their engines, and then when the signal to go was given 15 bikes would start up, then at full throttle in the worse case, you would have 15 large bikes on the main track and 15 smaller ones on the preliminary track and both of them, both of those races starting at the same time. My recommendation would be that you follow the recommendation of your Planning Board and deny the variance being applied for. Thank you.

Atty Beeker: Mr. Chairman, may I ask Mr. Edney a question? Under the Rules of Evidence, would this be something that would be considered an exception of the hearsay rule, like a treatise?

M. Edney: The front page, yeah, but it is not (couldn’t hear remainder).

Atty Beeker: O.K.

Witness Kumor: The front page is basically the bibliographical reference. O.K.? This is where I got the information, so that is not hearsay.

Chairman: Well, the Board will have to deal with that. I think your question…

Atty Beeker: I’ll have to look at that, yeah.

S. Baldwin: I did have a question for Mr. Robert Dunlap. Mr. Dunlap did you say at one time that the property that is in question was used as a bean field?

Witness R.Dunlap: Yes Sir.

Member: Thank you.

Chairman: Mrs. Corn, will you call the next party.

Mrs. Corn: Dave Sherlin.

NO RESPONSE.

Mrs. Corn: James Owen.

Witness Owens: Hello, I’m James Owen and my property is adjoining Mr. Bennett’s property and the concerns that I have are just like everybody else here with noise because I have a home on the property, but also the Edgerton Road. In the past, we share that road because he goes in at the front and then I go to the end of it, and it’s a gravel road, and in the past there have been vehicles that have been parked down that road loading and unloading bikes and then driving down into the motor cross property, and several times at the end of their racing, or whatever it is, when they go to put their bikes away, they’ll drive up to where their vehicle is on Edgerton Road. And what they’ll do is - will take one last run or will take the run down Edgerton Road. And it’s a gravel road and then they spin out and so there’s flying gravel and there’s a lot of holes in the road because of that. But, it doesn’t happen all the time but it has happened quite a bit. And that’s all I have.

Chairman: Any questions for Mr. Owen?

NO RESPONSE:

Chairman: Mrs. Corn will you call your next party.

Mrs. Corn: Bill Harper, Jr.

Chairman: Mr. Harper.

Witness Harper: I’m Bill Harper, Jr. I live on Lakeside Drive in the Valley Hill section and the thing that we’ve listened to – we’ve listened to a lot of speakers here tonight and you want to keep your eye on one major fact. This facility operated for a year and a half. Now in this year and a half the wind has blown. You’ve heard about wind blowing. You’ve heard about everything - any natural thing that could happen. Well it’s happened in the year and a half. You’ve had floods. You’ve had everything. And in this year and a half, not one, not one single complaint from anybody but you get here tonight and you see people are recruited that never had a clue that this facility was operating until somebody contacted them and talked them into coming to this meeting. So when you, when you… who complained?

SOMEONE IN AUDIENCE SPEAKS.

Witness Harper: Who’d she file a complaint with?

Chairman: Mr. Harper, direct your comments to the Board of Commissioners. And would you hold your comments in the audience.

Witness Harper: Alright. Well when I get through she can tell us when she filed and who she filed a complaint with. That’s the year and a half - now after it was closed, everybody jumped on the bandwagon after the track was closed, as soon as they found out about it. And that will be about - I think I made my point there. Thank you.

Chairman: You have any questions for Mr. Harper.

NO RESPONSE.

Chairman: Thank you Sir.

AUDIENCE CLAPS.

Chairman: Do you have any other parties Mrs. Corn?

Mrs. Corn: No Sir, I don’t. I do have one party who asked if he can be allowed to make an additional comment.

Atty Beeker: Do you have any objection to that?

M. Edney: Who is it?

Witness Cox: O.K. And my last thought is that a lot of times ordinances are very broad for a reason because nobody knows what the future holds so they have to make it broad, but most of these ordinances are simple ones, like noise and the use of land around housing developments. Those are very, very important, and I think to go against those ordinances, I think that is a very, very big deal when we allow something that really takes a different course than what people who have voted with their confidence and their finances to come here have come here for. To leave that track, I think it is a really, really, really solemn choice if we do it, so I do encourage you to not make that choice, because by doing that, you vote against the majority of all the residents, I believe of this area.

Chairman: Do you have any other parties Mrs. Corn?

Mrs. Corn: No Sir.

Chairman: O.K. we have this auditorium until 9:30, which is the hour that’s here now. And what we’ll do is continue this meeting until the 3^rd of May at 7:00 at 100 North King Street at the Board of County Commissioners’ Meeting, and we won’t have any time limits there, and we’re going to be there until we get done, so just bring your lunch with you… we’ll pick back up at the cross-examination and closing arguments.

Atty Beeker: We’ll need a motion to continue it Mr. Chairman, and anyone who has spoke as a party, or if you have parties who are not here, please have them back because this will be their opportunity for cross examination and in fairness make sure all your witnesses come back.

? Someone?: Can you repeat the time and date?

Chairman: May 3^rd. It’s the regular monthly meeting of the Board of the County Commissioners. It will be at 100 North King at the County Commissioners’ office, and we will start at 7:00. And I make that a motion. All those in favor of that motion, say ‘aye’.

Members: Aye.

L. Young: I make a motion that we…

Atty Beeker: He did.

Attest:

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