MINUTES

STATE OF NORTH CAROLINA BOARD OF COMMISSIONERS

COUNTY OF HENDERSON MAY 3, 2004

The Henderson County Board of Commissioners met for a regularly scheduled meeting at 5:30 p.m. in the Commissioners' Conference Room of the Henderson County Office Building.

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

Also present were: Planning Director Karen C. Smith, Public Information Officer Chris S. Coulson, Budget and Management Director Selena Coffey, Finance Director J. Carey McLelland, Planner Josh Freeman and Planner Derrick Cook.

CALL TO ORDER/WELCOME

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

PLEDGE OF ALLEGIANCE

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

INVOCATION

David Nicholson gave the invocation.

DISCUSSION/ADJUSTMENT OF AGENDA

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

CONSENT AGENDA

Commissioner Baldwin requested that Item H - Update on County Comprehensive Plan and Other Major Planning Initiatives be pulled for discussion.

Chairman Hawkins requested that Item F - Governor’s Crime Commission Grant be pulled for discussion.

Chairman Hawkins made the motion to approve the consent agenda except for Items F and H. All voted in favor and the motion carried.

The consent agenda then consisted of the following:

Minutes

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

February 18, 2004 regular meeting

March 16, 2004 special called meeting

March 17, 2004 regular meeting

Tax Collector’s Report

Terry F. Lyda, Tax Collector, provided the Tax Collector’s Report dated April 3rd for the Board’s information.

Financial Report – February 2004

Cash Balance Report – February 2004

These two reports were presented for Board information and consent approval.

The $73,321 YTD deficit in the Travel & Tourism Fund is due primarily to the annual Mountain Seasons Travel Magazine printing bill for $40,951 and $16,565 in advertising costs being paid during the month of March. This negative position will gradually change over the next three months as the last quarter of the fiscal year is when occupancy tax and advertising revenue collections are at their highest.

The $6,934 YTD deficit in the CDBG-Highlander Woods Housing Project and the $12,146 YTD deficit reported in the Mud Creek Watershed Restoration Project are all temporary due to timing differences in the expenditure of funds and the subsequent requisition of funds to reimburse these expenditures.

The $38,066 YTD deficit in the Mills River Sewer Project Fund is due to the expenditure of funds for engineering fees that will subsequently be reimbursed from the Federal EPA Grant.

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

Henderson County Public Schools Financial Report – March 2004

The Schools Financial Report for March was presented for information and consent approval.

Juvenile Justice and Delinquency Prevention Grants

The Henderson County Juvenile Crime Prevention Council (JCPC) had approved funding for the local juvenile crime prevention programs. The funds for FY 2004-2005, in the amount of $208,354 were available for this purpose through the State of North Carolina. Each program was required to provide a 30% match.

The programs approved by the JCPC were:

1. JCPC Administrative Expenses $ 7,500

2. Youth Mediation Services/PACES/Balfour $ 51,237

3. Project Challenge NC $ 63,623

4. Boys & Girls Club $ 30,000

5. Non-Secure Detention – D.J.J.D.P. $ 5,000

6. Psychological Services for Juvenile Court $ 11,500

7. Y.M.C.A. $ 9,117

8. Reserve funds for Juvenile Crime Prevention Services $ 30,377

$208,354

The grant applications had been recommended for approval to the Board of Commissioners by the JCPC. They would then be forwarded to Raleigh before the May 15, 2004 deadline.

In addition, as part of the grant application process, each county is required to submit an annual plan for juvenile crime prevention and intervention services and JCPC Certification. Those items had been completed and were recommended to the Board for approval and signature.

Governor’s Crime Commission Grant

This item had been pulled for discussion.

Request for Improvement Guarantee for Rebecca’s Pond Subdivision

Mr. Gene H. Carswell of GHS Land Development , LLC, had submitted an application for an improvement guarantee for a proposed minor subdivision the company was developing known as Rebecca’s Pond. The subdivision was being constructed off Kanuga Road. The Subdivision Administrator granted conditional approval of the Development Plan for the project on September 15, 2003. The improvement guarantee was proposed to cover road and drainage improvements, shoulder stabilization and installation of erosion control measures.

Pursuant to Section 170-38 of the Henderson County Code, a developer may, in lieu of completing all of the required improvements prior to Final Plat approval, post a performance guarantee to secure the County’s interest in seeing that satisfactory construction of incomplete improvements occurs. One type of permitted guarantee is the posting of an irrevocable letter of credit. Mr. Carswell (the developer) intends to post with the County a letter of credit in the amount of $85,269.79, which includes the cost of the improvements ($68,215.83) as well as the required twenty-five percent (25%) contingency ($17,053.96). The proposed completion date for the improvements was September 1, 2005.

A draft Performance Guarantee Agreement was presented for the Board’s consideration. If approved, the developer must post with Henderson County an irrevocable letter of credit in accordance with the terms of the Agreement. Once the County receives the letter of credit, the (Assistant) County Attorney must certify the Agreement as to form prior to its execution by the Chairman and the developer.

Update on County Comprehensive Plan and Other Major Planning Initiatives

This item had been pulled for discussion.

Discussion of Items F and H

Item F – Governor’s Crime Commission Grant

At the Board’s meeting on January 21, 2004, the Board approved applying for a grant to provide additional staff at the Sheriff’s Department for Family Violence Prevention/Enforcement. The Sheriff’s Department had been notified that that they would only receive one-year funding for the program. Basically, Henderson County would have to take over full funding of the program a year earlier in FY 05-06 instead of FY 06-07. In order to match up with the amount of grant funds awarded, they had eliminated the part-time administrative position and some of the additional operating funds. The expenses would have to be taken from the existing budget.

Chairman Hawkins stated that the County Manager’s recommendation called for no additional County funds, and asked if that was for the second year. Mr. Nicholson answered that was for the first year because they were using already budgeted salaries for the local match for the program. He did state that for the second year, approximately $70,000 in salaries would have to be in the FY 2005-2006 budget. The cost to the County for the first year would be $0, the second year would be $71,941 and if the County wished to continue the same level of service for the third year the cost would again be $71,941.

Mose Highsmith clarified that this was the grant that would allow for some vehicle matching. He also stated that they had withdrawn the part-time administrative position and a lot of equipment since they felt the two full time investigators were the most critical part of the grant. There was also discussion about the threat assessment software, with Mr. Highsmith stating they do plan to still get that software but through alternative means.

Item H - Update on County Comprehensive Plan and Other Major Planning Initiatives

Commissioner Baldwin stated that he wanted to discuss the schedule for the Comprehensive Plan. One of the discussions that had been had about adopting the Strategic Plan dealt with the proposed Comprehensive Plan adoption date specified in the Strategic Plan. Commissioner Baldwin had made the motion to adopt the Strategic Plan and push the date for the adoption of the Comprehensive Plan out into July. He requested that the Board reconsider that, and see if the Plan could be finished in June since he planned to officially leave the Board on June 20^th. He felt it was feasible to finish the plan in June, and asked for the Board’s consideration. It was the consensus of the Board to consider adjusting those dates during discussion planned for later in the agenda.

Chairman Hawkins made the motion that Item F and H as presented be approved in the Consent Agenda. All voted in favor and the motion carried.

NOMINATIONS

Notification of Vacancies

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

1. Alliance for Human Services – 1 vac.

2. Land-of-Sky Regional Advisory Council on Aging – 2 vac.

3. Nursing/Adult Care Home Community Advisory Committee – 1 vac.

4. Social Services Board – 1 vac.

Nominations

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

1. Downtown Hendersonville, Inc. - 1 vac.

Chairman Hawkins nominated Holly Gardner for appointment to the vacant position. Commissioner Messer nominated Marcie Burlett for appointment. The item was rolled to the next meeting for a vote to be taken at that time.

2. Equalization and Review – 1 vac.

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

3. Henderson County Historic Courthouse Corporation – 7 vac.

Chairman Hawkins stated that the item remaining open was which names to assign to which terms. When the Courthouse Corporation met, they had recommended that Dr. George Jones, Theron Maybin and Argie Taylor serve terms expiring in 2005, Judy Abrell and Tom Orr serve terms expiring in 2006 and Spence Campbell and Ron Stephens serve terms expiring in 2007. Chairman Hawkins made the motion to accept those terms to set up their staggered terms. All voted in favor and the motion carried.

4. Henderson County Planning Board – 3 vac.

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

5. Industrial Facilities and Pollution Control Financing Authority – 1 vac.

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

6. Juvenile Crime Prevention Council – 1 vac.

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

7. Nursing/Adult Care Home Community Advisory Committee – 4 vac.

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

8. Planning for Older Adults Block Grant Advisory Committee – 2 vac.

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

9. Senior Volunteer Services Advisory Council – 1 vac.

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

10. Solid Waste Advisory Committee – 3 vac.

Commissioner Messer nominated Dianne May for appointment. Chairman Hawkins made the motion to accept Ms. May by acclamation. All voted in favor and the motion carried.

NCDOT – Public Transit Proposal

David Nicholson reminded the Board that when Henderson County was put into the Asheville Area Metropolitan Statistical Area, the County also had to become a member of the French Broad River MPO. One change experienced by the County was in the way our public transportation program is funded. Because of that change, Staff had visited the Federal Transit Authority in Atlanta to get a handle on what it was going to take to receive federal funds. They learned that unlike the state funds which the County was receiving to operate the program, we would now only receive funds for capital and maintenance. Operational costs would not be funded by the federal government.

Based on that, Mr. Nicholson had requested the Board allow him to approach the MPO and have them do a report, which had been presented to the Board earlier in the year. That report outlined several options, one of which was to go back to NCDOT, and ask for one year of transitional funds. Such request had been made, and a letter from Miriam Perry, Director of Public Transportation and Rail Service for North Carolina had been received. In that letter, for the coming fiscal year, Ms. Perry planned to recommend to the Department of Transportation’s Board that Henderson County receive monies to continue the public transportation in Henderson County for a period of one year.

There are actually two separate pots of money. One is basically for the program that runs around the City of Hendersonville and is in the amount of $106,240. The second program is for $82,000 and is the program that runs the bus to Fletcher and connects to the Asheville Area Transit System. Essentially, they are willing to give Henderson County $188,240 for a period of one year. The caveat to doing this, is they would like to see a plan in place by the end of the current calendar year on how long term, the community would propose to continue the funding of the program.

Mr. Nicholson stated that the MPO is supposed to be doing transportation planning for Henderson County, and he would like for them to convene a group that includes Henderson County, the City of Hendersonville, Fletcher, Laurel Park and representatives from the Asheville Transit System. Until meeting with the Asheville Transit System, we won’t be able to tell what the Federal Government funds can be used for. Another reason for bringing other people to the table is because the transportation grants serve more than Henderson County. Of the total miles in the system, 22 miles are within the City of Hendersonville limits, 12 miles in the Fletcher route though not all of those are in the Town of Fletcher, one mile is in Laurel Park and 23 miles are in the unincorporated areas of Henderson County.

David Nicholson requested the Board write the MPO, requesting that based on the letter from Miriam Perry, they convene a group that includes Henderson County, Hendersonville, Fletcher, Laurel Park, Apple Country Transportation and representatives from the Asheville Transit System to start working on something that can be presented back to those various Boards by early fall so we might be in a position to come to a consensus on long term transportation and be in compliance with the December 31^st deadline. Mr. Nicholson had mentioned this to the LGCCA, and felt no one would be surprised to be invited to participate in that discussion.

Chairman Hawkins stated that there was $20,000 in the MPO’s budget for such a study. Commissioner Moyer expressed concern that if Henderson County accepted funds and agreed to come up with a plan by December that Henderson County would be committed to funding the MPO’s plan. Chairman Hawkins stated that he had a similar concern. David Nicholson stated that the letter could go to Ms. Perry and state that Henderson County would work on the issue, but could not make any commitments until determining the costs and the long term feasibility of the program.

Commissioner Baldwin made the motion to accept Ms. Perry’s proposal, but make it clear that we are not committing to continuing the program. Chairman Hawkins questioned the possible inclusion in the motion of correspondence with the MPO regarding forming the meeting of municipalities and the County representative. Commissioner Baldwin amended the motion to include inclusion of that correspondence. Following discussion, all voted in favor and the motion carried.

UPDATE ON PENDING ISSUES

Comprehensive County Plan – Draft Public Relations Plan

Chairman Hawkins reminded the Board that Commissioner Baldwin wished to address the timing on the final phases of the Plan. He stated that the Board had recently received a draft copy of the Plan, and it appeared that Staff had moved forward on the Plan and it seemed possible to adjust the dates and still allow ample time for public input. Commissioner Baldwin stated that he felt it was important to remember that this was not a zoning ordinance, it was a plan and a fluid document.

Karen Smith answered several questions from the Board regarding the status of the Plan. Commissioner Baldwin stated that he would like to propose scheduling the public presentation on June 7^th, take public input on June 8^th from 9:00 am – 11:00 am and June 9^th from 6:00 pm – 8:00 pm and also on June 9^th from 8:00 – 9:30 pm have the Board offer direction back to Staff on adjustments. He also suggested that on June 18^th the Board schedule a morning workshop for adoption of the Plan. Chairman Hawkins suggested taking public input on June 9^th and 10^th, giving staff an extra day. There followed discussion on the practicality of the proposed schedule.

Commissioner Baldwin made the motion to hold a special called meeting on June 9^th from 9:00 – 11:00 for public input, a special called meeting on June 10^th 6:00 – 8:00 for public input, and continuation of the meeting on the 10^th beginning at 8:00 to give staff direction as to what changes or edits to the document need to be made. He also moved that a special called meeting be set on June 18^th at 9:00 am for revision and adoption of the CCP. All voted in favor and the motion carried.

IMPORTANT DATES

David Nicholson stated that he planned to present his proposed budget to the Board on May 19^th, and stated that budget workshops could be held beginning at the end of May. Chairman Hawkins suggested that several workshops be scheduled at the end of May, and perhaps one at the beginning of June. Chairman Hawkins made the motion to set special called meetings on June 25^th, 26^th and 28^th. Commissioner Messer indicated that he would be unable to attend a meeting on the 28^th. Following some additional discussion, Chairman Hawkins made the motion to set a special called meeting on May 24^th at 11:00 for a budget workshop, and on May 25^th and 26^th at 5:00 for budget workshops. All voted in favor and the motion carried.

David Nicholson stated that at the first meeting, staff would go through the revenues. Mr. Nicholson stated that he would extend the invitation for budget presentation to all elected officials, but planned to schedule the Sheriff, Board of Education, Community College, DSS and Public Health. He stated that it would be up to the Board as to whether they wished to meet with the Parks and Recreation Board or the Library Board.

It was the consensus of the Board to set a special called meeting for the Fire Departments to present their budgets. Chairman Hawkins made the motion to set a special called meeting with the Fire AdvisoryBoard and/or Fire Districts for June 14^th at 7:00. All voted in favor and the motion carried. It was also the consensus of the Board to have Mr. Nicholson schedule the Parks and Recreation Advisory Board during an evening meeting.

INFORMAL PUBLIC COMMENTS

There were none.

CLOSED SESSION

Chairman Hawkins made the motion for the Board to go into closed session as allowed pursuant to NCGS 143-318.11 for the following reason(s):

1. (a)(4) To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body..

All voted in favor and the motion carried.

Chairman Hawkins made the motion for the Board to go out of closed session. All voted in favor and the motion carried.

ACTION FOLLOWING CLOSED SESSION

Chairman Hawkins made the motion to schedule a public hearing to consider an economic incentive grant for Pepsi Cola Bottling Company of Hickory, who are considering the construction of a five million distribution facility in Henderson County. The amount of incentives the Board will consider at the public hearing will be $17,193.36 per year for five years, and the date for that public hearing being June 7^th at 7:00 pm. All voted in favor and the motion carried.

CONTINUATION OF QUASI-JUDICIAL PUBLIC HEARING – Variance Application #BOCV-03-01 and Special Use Permit Application #SU-03-01

Chairman Hawkins made the motion to go into public hearing. All voted in favor and the motion carried.

Chairman Hawkins – “Ladies and gentlemen, again we’re continuing our quasi-judicial proceeding. It’s being held today to consider Variance Application #BOCV-03-01 and Special Use Permit Application #SU-03-01 submitted by J. Michael Edney on behalf of George Andrew Bennett. The subject, both the variance application and the special use permit application is whether a motocross facility may be operated on that property located at 198 North Edgerton Road, Hendersonville. A quasi-judicial proceeding, much like a court proceeding, is a proceeding in which one's individual rights are being determined. The proceedings 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. A summary of the rules, uh, are available, uh, for anyone who wishes a copy. Uh, under these rules not all persons here this evening will be allowed to speak. As the Board is aware, any information which the Board, uh, members has already received, uh, concerning the proceedings, or discussed with anyone must be revealed at the beginning of the proceedings. Uh, I think there’s been a couple articles in the paper so I think everybody’s aware of that. Has any other Board members received any other information concerning the issues to be considered? Okay. At this time all parties will be allowed to ask questions of, or cross-examine any other party or witness who has testified at the meeting proceedings. And Mr. Edney, do you wish to go first or last, uh.”

Mike Edney – “Uh, I’ll go last.”

Chairman Hawkins – “Okay. Mrs. Corn would you call, uh, any of the parties that, uh, wish to cross-examine if the. For those of you, uh for your information the uh, only the uh, parties are able to cross-examine although you may cross-examine parties and/or witnesses.”

Elizabeth Corn – “The first one is George Bennett, and he’s gonna go last so Karen Smith.”

Commissioner Moyer – “Staff should get the chance to go last.”

Karen Smith – “I don’t have any questions.”

Chairman Hawkins – “Okay.”

Elizabeth Corn – “Chuck Pressley.”

Chairman Hawkins – “Do you, do you have any, any cross-examination? I would just remind you to limit your speaking at this time to questions and cross-examination. We won’t be taking new evidence.”

Chuck Pressley – “Sure. Uh, I would like to ask the question, um, should this variance be allowed what would you project, uh, the motocross would look like five years from now? Uh, because I, is, is this the proper kind of question that we’re entertaining here?”

Chairman Hawkins – “Sure.”

Chuck Pressley – “Because I, I, the point that I’m, uh, looking for here is that this started out as a privately owned piece of property. It turned into a commercial venture. Um, my understanding of most businesses is that uh, you’re in the business to make money, uh, to provide some service in return for some kind of income. Uh, based on improvements that they’ve made, um, they’ve agreed to various limitations up to this point but um, I would envision that it would want to grow and prosper and increase in size. And so that’s why I would, uh, want to ask them, um, if this were to occur what would it, what would you want it to look like. What would you want your business to look like five years from now?”

Chairman Hawkins – “Okay. Mr. Bennett you wanna come to the mic. and respond to that?”

Angela Beeker – “Mr. Chairman I just wanna remind everyone that has signed an affirmation that you are still under your oath or affirmation that you signed.”

Chairman Hawkins – “Thank you.”

George Bennett – “Yeah in answer to his question I would, I would like for it to grow some as far as patronage. I mean that, that wouldn’t mean, necessarily mean more riders at one time. I mean, you know, but, as, as far as building structures and, and you know stuff like that, expanding, and parking or structures or anything like that, really wouldn’t do, wanna do a whole lot more with it. I mean I’d like, I’d like to clean it up some more, but I mean that, that takes money and we’ve, we’ve already spend a lot of money cleaning it up and, and at the last meeting there was somebody, I, I believe it was Mrs. Smith brought up a, the matter of a few junked cars left out there and, and when were we gonna haul ‘um off and you know we’d been working on that. We’ve hauled off over 50 junk cars. I mean some of ‘um were, were as old as, I mean that, some of ‘um were 50’s and 60’s models. I mean some of ‘um were half buried out there you know. But as far as, as building anything I mean I really wouldn’t want to, like to plant some more shrubs and stuff like that, have a lot more grass, but, but other than that just, just kinda wanna have a practice track. You know, just a place for kids to ride. You know I’m really not trying to build, uh, Charlotte Motor Speedway out there or Dayton or anything like that I mean just, we just, just need a place to ride. It doesn’t have to be fancy, it doesn’t have to be, I mean we don’t need retail stores or anything like that I mean, we just, just a little practice track. Not a whole lot better than, not, not much more than what it is right now but a little cleaner, little greener, stuff like that. That’s about it.”

Chairman Hawkins – “Thank you Mr. Bennett.”

Elizabeth Corn – “Mr. Pressley do you have any more questions before we go to the next one?”

Chuck Pressley – “Uh, I’d like for him, uh, to be a bit more specific to talk about lights. To talk about the length of operation I think in terms of, of uh, you talk about the rain and how that limits some of your, uh, ability to have races, but in terms of lighting, in terms of year round operations, in terms of days of the week versus the weekends, uh, in terms of possibly invitational races where you would, um, have a regional group, various things of that nature because if it were my business that’s what I would be shooting for and, and I just would think that that would be part of what you would eventually want to do. So I, I think that would be important for us to know that.”

Chairman Hawkins – “Okay. Would you come back to the mic. and respond to that. Uh, lighting, uh, weather and operation hours and.”

George Bennett – “Yeah, I, I never plan to have lights out there. It’s a, just too expensive and it’s, it’s flood plain. And then, as far as organized races, we’ve, we’ve had some organized races. They weren’t exactly, I mean, they weren’t sanctioned races, AMA sanctions or anything like that. We do have a, have a track that’s, it’s a, it’s a, it could be sanctioned as a AMA track, I mean, we just keep the specif, the track as built to AMA specifications you know width, and, and stuff like that but, but as far as an AMA race I just, I’m not up for it. I wouldn’t want to do it. And down the, I mean not now, not in the future. I mean I just, like I say I, you know if, if I had, if I couldn’t race that would be fine. I mean if that were one of the conditions of the permit, if I did, if I did decide to have a race then I would come and apply for a special event permit. And uh, I mean, I think you can apply for two of those a year and uh, as far as the hours of operation it’d be about the same as it was. I mean we’d probably open at 10:00 on Saturday until probably an hour, 30 minutes before dusk, somewhere in there and then uh, Sunday after church we, we’re opening at 12:30 and trying to close by about 6:30 or 7:00 on Sundays. And through the week, uh, we might open one or two afternoons through the week you know if we’re rained out through the weekend, I mean we’d open at 1:00, close at 6:00, you know just uh, but as far as uh, you know, uh, the, he was talking about rain, weekends when we’re rained out like, you know we wouldn’t a run this weekend and we may not have been able to run last weekend. We had a lot of rain at the first part of the week you know, I mean. See it’s not an every weekend thing and there, there’ll be some nice weekends when the track will be closed. If it rains hard Wednesday, Thursday, I mean it, it’s a week before you can open that track back up. I mean you have to wait on the river to go down and then you have to wait on the place to dry up, you have to, your silt ponds have to drain and uh, I mean it’s, it, it can take a while to get one back open, is, uh. Back in uh, the beginning of 2002 we were uh, no 2003, end of 2002 and beginning of 2003 we were open two days from September to March. You know and there were some pretty weekends but I mean it was just so wet that year that, that we just, we didn’t even fool with it. And that, and, you know in the summer time it does dry out, we’d be riding more in the summer than we would the winter, and the spring and the fall. I mean it start, it starts getting’ wet around the fall at then, when, when it’s hot it’ll dry out quicker. It’s a sandy track and there’s a lot, there’s always a breeze down there but, but it, you know in the winter time when it’s freezin’ and thawin’ sometimes it doesn’t thaw till 2:00 or 3:00 and then it’s even wetter than it was before you know. So I mean it’s really not an every weekend thing. It’s, it’s, I, when I, when I wrote a business plan for this loan I, I figured, and you always, you always try to overestimate on a business plan when you’re trying to get a loan so, so what I did was I, I said we’d run approximately 35 weekends a year. And that was, that was pushing it. And it would be hard to, to get in 35 weekends. You couldn’t a done it this year.”

Chairman Hawkins – “Did you, did you write your business plan before you purchased the land or after?”

George Bennett – “Before. I’d had some experience with, with motocross tracks and I know, I know how they can be. I mean I know how weather can effect. I mean you, it might, I mean it might rain on a Wednesday but, but if the ground, if it’s wet, the ground’s wet, I mean it has to dry down six or eight inches before, before you can actually, the track’s actually usable.”

Chairman Hawkins – “Thank you Mr. Bennett.”

Elizabeth Corn – “Mr. Pressley was that it?”

Chuck Pressley – “Couple more real quick follow-ups and one other question and then I’ll let someone else have a turn. Wh, you said you had past experience with that so I’m, I’m guessing you’re familiar with sponsorships and you had people come forward and talk about local businesses and how they’ve bought bikes from the local businesses and, uh, how that they would be supportive of it and it brings jobs, so I would assume that you might be looking for sponsorships. Again the idea of expanding and increasing it, and also you had talked previously about a gentleman who you gave, I think, Power of Attorney to help you get things squared away and he talked about, um, it’s the best place in the County. Have you had any concentrated search or efforts to look for other places that are uh, properties that don’t require a variance because I would think with the size of group that you had to speak on your behalf, and the places that they came from that there might be opportunities in adjoining counties or joint ventures in, with multiple counties working counties working together to look for, uh, places. Have you done any searching for additional or different places that don’t require a variance?”

Mike Edney – “Is there any way we could get a traveling mic….”

Chairman Hawkins – “I don’t think we have that high technical capability Mike.”

Mike Edney – “…come on.”

Chairman Hawkins – “That’s about it.”

George Bennett – “Yeah uh, yeah I did look around and, and the reason I chose this place is, is partly because it was flood plain and because it had a river. And uh, and, and when I looked I, I mean, we, we looked at aerial photographs and stuff like that and I, and, and there really weren’t that many residences around here. And I’ve looked everywhere and, and you know that to, to comply with this ordinance you’d probably have to have about 2,000 acres when you look at, to have what I’ve got out there when you look at the setbacks and the buffers and, and uh, and it’s hard to find that much, I mean. See this ordinance, is, is, I don’t think it’s for a motocross track. I think you’re trying to keep, when, when the ordinance came about I think you were trying to keep the racetrack from Amboy Road out of Hendersonville. That’s, that’s just what I’ve heard and that’s, I mean, I don’t know if that’s true or not but, but I mean, this when this, this is an ideal spot. I mean, it doesn’t matter where you put this thing and, and like you said I did look around and I have looked at other places and, and no matter where you put it you’re gonna have people that are come, that are gonna come out and oppose it. I mean that’s just, that’s just the way it is and, and you could put it, I mean, you, you, somebody mentioned the top of a mountain in Edneyville. Well that’s probably a protected mountain ridge. If there’s not a bunch of houses on it then, then it’s a protected mountain ridge. You, you find any other place with water it’s probably wetlands or it’s protected by, for a flower or frog or something like that. I mean there’s, there’s really not that many places that you could do this and uh, you know this piece, this piece of property it was, it was awful when we bought it. I mean it, it just, it looked terrible. And uh, and there was a, and that was one, I almost didn’t buy it because it was so much work to clean it up. But uh, but I mean you know it is an ideal location I mean there, there’s things that you gotta have to have a motocross. Yeah, I mean you have to have a good supply of water and uh, and you, and you need that, you could, it would be better if it had some, had some natural terrain, but it’s all flat and you, you have to build a lot of stuff with, you know and haul in dirt and stuff like that but, but I mean as far as an, ano, another location I mean this place was just perfect. I mean it’s sandy, it has sand, it’s got clay and uh, I mean there’s really not that many, not that many places where you can find all these thing and, you know, it’s got rich black dirt. I mean there’s a, there’s just, it just makes for a, for a great motocross track.”

Chairman Hawkins – “Thank you.”

Chuck Pressley – “…about the sponsorship…”

George Bennett – “Yeah, and uh, as far as sponsorships uh, there were times when uh, we, we had a free style event. Uh, back in September of 2002 and uh, and we did ask for sponsorships but other than that we’ve never asked for, for money from, from any of the cycle shops or anything like that. We didn’t want it, the reason we asked for sponsorships for that, cycle shops kicked in and helped us out and we hired some freestyle riders out of Florida. These are the guys that do the big jumps and do the tricks and stuff like that. And uh, they were pretty expensive and we let, and, and there was, they were, they were the only people we had a small race just for 80’s, 80’s and below that day just for the kids and then we had a show, a freestyle show and that was the only time we’ve ever taken money for sponsorships. And, and we didn’t actually take money we took prizes, we took, we took gift certificates to hand out to the kids and then uh, we actually, we did take cash from DalKawa to pay for some of the riders and I think Harper’s gave us some cash to pay in the, in the form of a check to pay some of the freestyle riders. Does that, that answer?”

Elizabeth Corn – “Janice Moore.”

Chairman Hawkins – “Ms. Moore do you wish to do any cross-examining?”

Janice Moore – “…can we do a summary or something afterwards?”

Chairman Hawkins – “You, you’ll have some closing arguments yes. Okay.”

Elizabeth Corn – “Mark Wright.”

Chairman Hawkins – “Mr. Wright do you have any cross-examining?”

Elizabeth Corn – “Mr. Cobb.”

Chairman Hawkins – “Mr. Cobb do you have any, anything to cross-exam? Okay thank you.”

Elizabeth Corn – “Douglas Dunlap.”

Chairman Hawkins – “Mr. Dunlap do you have any cross-examination?”

Douglas Dunlap – “Just one that comes to mind. Is there any um, documentation available as to where all these riders are going to be coming from? I’ve gotten the impression that, at some of the other proceedings that some of these folks are driving for an hour to come over because they couldn’t have one in their county. You know, for whatever reason, so you know is this, uh, you know I don’t know if you can tell how many are coming from neighboring counties, it, it’s not limited certainly to Henderson County and to the X amount of riders that are …. they’re gonna have so. You know I’ve seen the truck loads come in so.”

Chairman Hawkins – “Is that for Mr. Bennett?”

Douglas Dunlap – “Anybody that’ll answer it.”

Chairman Hawkins – “Mr. Bennett do you wanna respond to that?”

Douglas Dunlap – “Thank you.”

George Bennett – “Um, the majority of riders come from this area. They, they made all, I mean they’re Henderson and Buncombe, Flat Rock and, and, but we do have uh, like I say this, this is a great motocross track. I mean you just can’t find the, all this, I mean most tracks you go to you’ll either find red clay or sand or, but never a mix and, and I mean this is, this is one of the best motocross tracks around and, and we’ve had people drive down from, up from Georgia, down from, uh, up from up north. We had a guy that lived up in, in Maine that stored his bikes in the mini-storage buildings and would fly down on the weekends just to practice. He was, kind of a serious rider, I mean some people are in that, but, but, it snows, there’s snow on the ground up there you know from, like I guess the end of July till, the beginning of July but uh, you know so they, they need a place to practice. But, but the majority of the riders are from around here. Most of um’ bought their bikes from DalKawa and Harper’s and that, but, but I mean they will come from, from, from all over to ride this track. It’s that good a track but, but you know we don’t, we don’t really advertise it. We’ve handed out flyers and stuff like that but, but uh, just word of mouth is pretty much what we’ve done but, but I mean a lot of people that are from here or go race in Shelby, and, I mean there are tracks in the area that you can, but they’re race tracks, strictly race tracks. I mean there’s fair, fairgrounds in downtown Shelby where they race every weekend. You know they’ll make friends and bring, bring somebody back up to the track from down there or something like that but, but they do come from I’d say Tennessee, Georgia, South Carolina, but the majority of them are from here. But just because they’re coming from everywhere doesn’t necessarily mean that you’ll have more riders at one time. I mean this, this is a, it’s a funny, it’s funny how I mean sometimes, some, some Saturdays you’ll have ten riders sometimes you’ll have 100 show up. It just depends on what’s going on like, like I say there’s races every weekend and that, that really cuts down, I mean cuts out the practice. You know they’re not gonna come out and practice if they’re gonna go race in Shelby all day on Saturday they’re not gonna be out there Sunday. So it just depends on what’s going on to where the riders come from and how many there’re gonna be.”

Commissioner Baldwin – “I’ve got a quick question for Mr. Bennett if I may.”

Chairman Hawkins – “Yeah.”

Commissioner Baldwin – “Mr, Mr. Bennett do you if, if anyone has ever taken it upon themselves to approach, say, DalKawa and Harper and Schroeder to see if they would be willing to go in together to, to actually purchase property for a track?”

George Bennett – “No. I, I’ve actually uh, I, I’ve talked to, to DalKawa and Harper’s and you know I’ve, I’ve let them, if they sell a bike I let ‘em come out to my track and ride. You know test bikes and stuff like that and I, and there’s a, there’s a shock place here in Hendersonville that, that does shock, racing shocks, they do race cars, Owen’s Suspension, and, and I let them come out and, and ride but, but no, I, I don’t know if they have, I don’t really know if they’d wanna make that, that kind of investment. I mean, you know, they wanna sell ‘um, they don’t care to care to ride ‘um if, if there’s a track to, to ride on then. But uh, they, they, they, I mean, did that kinda answer your question?”

Commissioner Baldwin – “It did. Thank you.”

George Bennett – “Okay.”

Elizabeth Corn – “Mr. Dunlap was that all your questions?”

Douglas Dunlap – “Yes. Thanks.”

Elizabeth Corn – “Dorothy Freeman.”

Chairman Hawkins – “Ms. Freeman do you wish to cross examine anyone?”

Dorothy Freeman – “…or two.”

Chairman Hawkins – “Okay remember the questions for cross-examine, uh, or, uh, not to introduce any new evidence just.”

Dorothy Freeman – “I’ll be good I hope. Uh, one thing about it Mr. Bennett, uh, you are not a resident of Henderson County is that right?”

George Bennett – “No mam.”

Dorothy Freeman – “Okay. I’d like to, really like to know how you found this wonderful place out, but I guess that’s not, within the lodge of what it is. Uh, I really believe that someone, and he specified in some of the meetings, that he was a neighbor. Well I’ve never heard a neighbor yet that buys a piece of property, and he’s not next to you but he is your neighbor. Now he doesn’t come to notify you what he plans to do and you find out in the long run that this is something that you’d, not wanting him to do. Now we had gone through this several years back when an ordinance was put in effect in 1999, April 23^rd, I believe that’s it, and some man spoke up at one of the meetings that he didn’t see how this ordinance could come into effect. I’m just entirely thankful that it was put in effect. I have.”

Chairman Hawkins – “Do you have a specific question Ms. Freeman?”

Dorothy Freeman – “Yeah the one thing I wanna know is how do we go, if you’re not going to be a resident and you don’t have to listen to this all the time, like eleven hours a day, and we do, and like the other man from where he is, and the other investors they all come out and we have to listen to it. He said as an average people only rode their bikes for two hours. That’s what I, and he’s got anywhere from 20 or 30 people riding bikes that’s a continual thing all day long. I did complain about it, I didn’t come to you gentlemen but I did come to this lady over here. And uh, it’s not her fault and I, she’s done a great job of putting together what this is all about, and basically, that’s all I needed to say.”

Chairman Hawkins – “Okay fine. Let me just remind the parties, you come up, there will be, there will be an opportunity for closing comments so during the cross examination if you’d just try to limit your, your, your comments to specific questions then you’ll have an opportunity to make closing comments a little bit later on. So, right now we’re just looking at specific questions and uh, cross examination. Mrs. Corn?”

Elizabeth Corn – “Gerald Nash.”

Chairman Hawkins – “Mr. Nash do you wish to cross examine anyone? Thank you.”

Elizabeth Corn – “Dave Sherlin.”

Chairman Hawkins – “Mr. Sherlin do you wish to cross examine?”

Elizabeth Corn – “James Owen.”

Chairman Hawkins – “Mr. Owen do you wish to cross examine anyone?”

James Owen – “No.”

Chairman Hawkins – “Thank you.”

Elizabeth Corn – “Bill Harper.”

Chairman Hawkins – “Mr. Harper.”

Bill Harper – “I’d like to make a statement particularly…”

Chairman Hawkins – “Well would you come to the mic. please sir.”

Bill Harper – “…sound I need to wait till the closing statement.”

Commissioner Young – “Yeah cause it’s a statement.”

Chairman Hawkins – “If, if you’re just”

Mike Edney – “…call him as a rebuttal witness get that information before the Board.”

Chairman Hawkins – “Okay if, if you’d just wait then Mike we’ll have rebuttal for you. Okay. Mrs. Corn.”

Elizabeth Corn – “Mr. Harper wasn’t here?”

Angela Beeker – “He’s here he doesn’t…”

Chairman Hawkins – “He said no.”

Elizabeth Corn – “Frank Cox.”

Chairman Hawkins – “Mr. Cox. Do you have any cross-examination questions? Okay.”

Elizabeth Corn – “That’s all.”

Chairman Hawkins – “Okay.”

Angela Beeker – “Mike.”

Elizabeth Corn – “Mike Edney.”

Mike Edney – “…ask Mr. Pressley to come up and I’ll just ask him a couple of questions.”

Chairman Hawkins – “Okay. Mr. Pressley, would join Mr. Edney at the mic. please.”

Mike Edney – “Just wanna make sure I understood. My notes say that you’ve said that you represented the uh, Fletcher Hills Subdivision.”

Chuck Pressley – “Fox, Foxwood Property Owners Association.”

Mike Edney – “Foxwood?”

Chuck Pressley – “Right. Located between 25 and 191 on Mountain Road.”

Mike Edney – “Where do you live?”

Chuck Pressley – “I live at 39 Fox Lair Lane.”

Mike Edney – “…make sure you weren’t the wrong Mr. Pressley. Do you know Chuck Pressley that lives in Fletcher Hills?”

Chuck Pressley – “No, sorry.”

Mike Edney – “Okay, then that’s all I have on you. Is Susan Lane here tonight?”

Unknown – “She’s supposed to be but I don’t see her.”

Chairman Hawkins – “Is Ms. Lane here?”

Unknown – “I don’t think so.”

Mike Edney – “I’ll move that her testimony be stricken since she’s not here for cross-examination.”

Chairman Hawkins – “Ms. Beeker would give the Board some advice on that?”

Angela Beeker – “I guess your choices would be to um, to do that or to continue it for the opportunity to have her come. It’s.”

Chairman Hawkins – “Okay. Mike do you have a preference on that, uh, as far as either continuing the meeting until you can question here or?”

Mike Edney – “My preference would be that she’s not here at the date and time specified by the Board and everybody was told at the last meeting they had to come back. I don’t want this thing to drag on …so I would ask that just her testimony uh, be stricken and not be considered by the Board.”

Chairman Hawkins – “Any discussion from the Board on that?”

Commissioner Baldwin – “I would, that would be fine with, fine with me.”

Chairman Hawkins – “Okay. We’ll, we’ll uh, we’ll strike her testimony from consideration.”

Mike Edney – “I’ll ask Janice Moore to come up. And we’re not picking on you but you, you’ve been around long enough so you can answer some of these questions better than some other folks who aren’t real professionals at coming to meetings. Uh, as I read some of your, my notes from your comments ‘Why we are here is beyond my comprehension’ and …comment like that.”

Janice Moore – “Yes I did.”

Mike Edney – “And ‘basically when we make rules we should keep ‘um’.”

Janice Moore – “Yes.”

Mike Edney – “Okay. Do you understand this land is zoned I-2?”

Janice Moore – “I do.”

Mike Edney – “You know it’s been zoned I-2 since the early 80’s?”

Janice Moore – “That’s correct.”

Mike Edney – “You know what can and cannot go in I-2.”

Janice Moore – “I’ve read over what can go in I-2. We’re not dealing with the I-2 we’re dealing with the motorsports...”

Angela Beeker – “Excuse me, if ya’ll could speak into the mic. to make sure we get.”

Mike Edney – “You understand Mr. Bennett could put an asphalt plant on this property without anybody’s permission, because it’s in I-2.”

Janice Moore – “If that’s what I-2 says. I don’t have it in front of me to go through everything it has.”

Mike Edney – “Well do you know that, or not know that. Yes or no.”

Janice Moore – “I can’t say yes or no at the moment because I don’t have it right in front of me.”

Mike Edney – “Do you know that he can put a tractor trailer terminal on that property without anybody’s permission.”

Janice Moore – “That is probably true.”

Mike Edney – “That he can put tire recapping or retreading on there without anybody’s permission.”

Janice Moore – “If that’s what it says.”

Mike Edney – “That he could run a, amusement park or carnival 24 hours a day seven days a week with nobody’s permission.”

Janice Moore – “If that’s in there.”

Mike Edney – “He could even put an airport on that property without anybody’s permission. Thank you.”

Janice Moore – “Okay.”

Mike Edney – “That would be all.”

Chairman Hawkins – “Okay thank you. Are there any final questions the Board has, uh, of any party or any witness?”

Commissioner Baldwin – “I’d like to ask Mr. Bennett a few questions, uh, just, just for the record to make sure I understand this. Mr., Mr. Bennett is, is it, uh, you, you basically did a site search.”

George Bennett – “Uh huh.”

Commissioner Baldwin – “Right?”

George Bennett – “Yeah.”

Commissioner Baldwin – “For the property. And, and what you found there was, you said that, uh, it had, uh, the type of soil that was conducive to a good track. Is that?”

George Bennett – “Correct.”

Commissioner Baldwin – “And, and you discovered that during your site search?”

George Bennett – “Yeah.”

Commissioner Baldwin – “You did.”

George Bennett – “Uh huh.”

Commissioner Baldwin – “So once you, once you saw the property you decided to do a business plan?”

George Bennett – “Uh huh. Yes sir.”

Commissioner Baldwin – “Okay you did a business plan. Once, once the numbers looked as is they were gonna work out then, then you went and actually pulled a loan from bank.”

George Bennett – “Yeah.”

Commissioner Baldwin – “And then you purchased the property?”

George Bennett – “Uh huh.”

Commissioner Baldwin – “Okay. And when did you purchase the property.”

George Bennett – “Uh, oh it’s been so, um.”

Commissioner Baldwin – “What year?”

George Bennett – “2001.”

Commissioner Baldwin – “Okay so, so you purchased the property 2001.”

George Bennett – “Uh, June or July 2001 I believe, I’m not sure.”

Commissioner Baldwin – “Okay, and before you purchased the property did you, did you go meet with somebody in the planning department to talk about the use per…zoning district?”

George Bennett – “Yeah.”

Commissioner Baldwin – “You did?”

George Bennett – “Uh huh.”

Commissioner Baldwin – “Did you secure anything in writing from our Planning Department about.”

George Bennett – “No, I, I got a copy of, the uh, the only thing I got was a copy of the uh, what you could do in an I-2.”

Commissioner Baldwin – “So you were given a copy of the zoning ordinance.”

George Bennett – “Right.”

Commissioner Baldwin – “Okay. From Henderson County.”

George Bennett – “Um hum.”

Commissioner Baldwin – “That, that was in, before you purchased the property and you purchased in 2001.”

George Bennett – “Um hum.”

Commissioner Baldwin – “Okay. Thank you.”

George Bennett – “Okay.”

Chairman Hawkins – “Any other final questions?”

Commissioner Baldwin – “I’ve got a question for uh, Karen Smith the Planning Director.”

Chairman Hawkins – “Karen.”

Karen Smith – “Yes.”

Commissioner Baldwin – “You just heard Mr. Bennett say that in 2001 he purchased the property and that he gave a visit to the Planning Department. Do you remember Mr. Bennett coming to the Planning Department in 2001.”

Karen Smith – “I don’t specifically remember Mr. Bennett, um, I know that several of our prior zoning administrators had conversations with various people. It may have been Mr. Bennett, it may have been several other partners.”

Commissioner Baldwin – “Okay. And in 2001, uh, does the ordinance we have today reflect the same ordinance that we had in 2001? Regarding motor sport in I-2?”

Karen Smith – “The zoning ordinance was um, amended on May 16^th 2001 when we did the Open-Use zoning amendments to incorporate some other amendments to other districts dealing with uses such as the uses that were covered in Open-Use and motor sports facilities was one of those. Uh, specific, uh, reference to motor sports facilities was added on that date as well as the site standards. And at that point, uh, well, somewhat after that, the motor sports facilities ordinance that was in place in the County, uh, from April 21^st 1999 was repealed on July 2^nd, 2001.”

Commissioner Baldwin – “So on, on May 2001 there were, there was an amendment made to the zoning ordinance and what we have today was what was put on the books in May of 2001?”

Karen Smith – “I believe so.”

Commissioner Baldwin – “Is that correct?”

Karen Smith – “Yes.”

Commissioner Baldwin – “Okay so we have not had an amendment made to the zoning ordinance with respect to motor sport in I-2?”

Karen Smith – “Give me a moment to look. The dates are in the zoning ordinance.”

Commissioner Baldwin – “Okay.”

Karen Smith – “No, it looks like the last amendment was May 16, 2001.”

Commissioner Baldwin – “The last amendment was when?”

Karen Smith – “May 16^th of 2001.”

Commissioner Baldwin – “May 16^th, 2001. And that, that was an amendment to a motor sport section?”

Karen Smith – “That was an amendment to the I-2 district.”

Commissioner Baldwin – “I-2.”

Karen Smith – “Right. specifically dealing with motor sports facilities.”

Commissioner Baldwin – “Okay. Thank you.”

Chairman Hawkins – “Any other questions from the Board of any party?”

Commissioner Moyer – “Shannon have you, have you clarified that to you, to your satisfaction?”

Commissioner Baldwin – “Um, I may have missed something Bill.”

Commissioner Moyer – “In the uh, the zoning ordinance with respect to the I-2 general industrial district, isn’t there cross-references to the motor sports, uh, ordinance?”

Karen Smith – “Not that I’m aware of. Do you have a section that you’re looking at?”

Commissioner Moyer – “The uh, under special uses.”

Karen Smith – “Uh huh.”

Commissioner Moyer – “Isn’t it identified as a special use?”

Karen Smith – “Motor sports facilities are, this is a special use.”

Commissioner Moyer – “Right.”

Karen Smith – “But there’s not a specific reference to the motor sports facilities ordinance that used to be in effect.”

Commissioner Baldwin – “But, but in, in May of 6, on the 16^th by, on May the 16^th 2001 it wa, it was added that it was to be a special use.”

Karen Smith – “Yes.”

Commissioner Baldwin – “That’s when it was added as a special use in I-2.”

Karen Smith – “Yes.”

Commissioner Baldwin – “Okay.”

Commissioner Moyer – “And it’s in the ordinance?”

Karen Smith – “Yes.”

Commissioner Moyer – “So if Mr. Bennett would have picked up a copy of the ordinance this reference would have been there.”

Karen Smith – “I can’t say for sure on that date. Um, we go through the code company for the amendments and so I, I can’t speak to that for sure.”

Chairman Hawkins – “But surely your staff knew that.”

Karen Smith – “I would hope so. They’re not here to, to answer that.”

Commissioner Moyer – “That’s the clarification Shannon. I just wanted to be sure we had that.”

Chairman Hawkins – “Any other questions the Board has of any parties?”

Commissioner Baldwin – “Yes I do I’d like to uh, uh, ask, uh Mr., uh, Douglas Dunlap just a question or two. Did you, did you testify that uh, uh, that your property was uh, downstream or upstream from the subject property?”

Douglas Dunlap – “If you’re at the race track and look back towards town I’m that way.”

Commissioner Baldwin – “And, and you said.”

Douglas Dunlap – “Towards Brookside Camp Road.”

Commissioner Baldwin – “Okay. And, and you said that your, your, your property, portions of your property were in the floodplain?”

Douglas Dunlap – “It is.”

Commissioner Baldwin – “And, and you use your property for agricultural purposes?”

Douglas Dunlap – “We do.”

Commissioner Baldwin – “And, and did you say that uh, you have cattle on the property or”

Douglas Dunlap – “There is.”

Commissioner Baldwin – “and/or you cut hay?”

Douglas Dunlap – “There is both.”

Commissioner Baldwin – “Okay. Thank you.”

Douglas Dunlap – “You’re welcome.”

Chairman Hawkins – “Any other Board questions?”

Commissioner Baldwin – “Got a question for Mr. Robert Dunlap.”

Robert Dunlap – “Mr. Dunlap did you say that, uh, at one time the, the property that’s being talked about was used as a bean field?”

Robert Dunlap – “Yes sir I did.”

Commissioner Baldwin – “Okay, thank you.”

Chairman Hawkins – “Any Board members have any other questions? At this time we’ll consider the rebuttal evidence. Mr. Edney do you have any rebuttal evidence at this time?”

Mike Edney – “…if I may, based on Mr. Baldwin’s questions, I would like to re, like to cross both Dunlap’s briefly. He asked about growing hay and growing beans, and I’ll ask about growing hay and growing beans, it hadn’t been brought up before.”

Chairman Hawkins – “Uh, I think it had been brought up before cause I remember…”

Several people speaking at once.

Mike Edney – “…cross-examination. This was like, be like … rebuttal or whatever the.”

Angela Beeker – “Re-cro, re-cross.”

Mike Edney – “Re-cross.”

Angela Beeker – “I think that would be permissible.”

Chairman Hawkins – “Okay. Mr. Dunlap, would you join us at the mic. then.”

Robert Dunlap – “Yes sir.”

Mike Edney – “Do you grow beans or hay?”

Robert Dunlap – “Just, just farm…made my speech, uh, at the last meeting I referred to as, as pickin beans on this property 60 years ago. The land was owned by Mr. Smith, Thurman Smith.”

Mike Edney – “How much money can you make picking beans on this property.”

Robert Dunlap – “Well at the time I was making 50 cents a bushel first pickin, 60 cents second pickin.”

Mike Edney – “Okay.”

Chairman Hawkins – “And who was your other person Mr. Edney?”

Mike Edney – “The other Dunlap…”

Douglas Dunlap – “Yes.”

Mike Edney – “…tell me about the profit margin in growing hay on a field like this?”

Douglas Dunlap – “We don’t sell any hay, we feed all of it.”

Mike Edney – “Okay. There’s no money to be made or no, can’t make your mortgage payments with it.”

Douglas Dunlap – “If you chose to you probably could.”

Mike Edney – “How much could you make?”

Douglas Dunlap – “…bale of hay, three dollars. Two thousand bales.”

Mike Edney – “Okay, thanks.”

Chairman Hawkins – “Do you have any other re, uh, recross?”

Mike Edney – “No.”

Chairman Hawkins – “Okay. At this time then we’ll look at the rebuttal evidence and Mr. Edney do you have any rebuttal evidence?”

Mike Edney – “Mr. Harper.”

Chairman Hawkins – “Mr. Harper.”

Bill Harper – “I’ll apologize for my voice, I wish it wasn’t like this. That’s just the way it is. I’ve been in the motorcycle business since 1969. And when the dirt bikes first came out they didn’t have any mufflers at all on them, they were very loud. As time has gone by they come with a double wall expansion chamber, they’ve come with the packing in the muffler where they’re just like a car but it’s repackable ‘cause these are rather small. They’ve come with liquid cooling. All of this has got quieter, and quieter and quieter. In this hearing we’re having here tonight these hearings are going on all over the country, we’re not the first people to have a problem with noise. You’ve had noise with model airplanes and racetracks and cars. But in the motorcycle industry you’ve got an awful lot of smart people working on this progre, on this problem. Anything that makes a noise it’s simple, you can put a silencer on a gun and silence the thing so you can silence these things down, that’s not an impossible task. And the things that, that, two topics that people have brought up in here and I want to bring back to you. Number one is the two-stroke engine. A lot of people find that objectionable because it sounds like a swarm of bees, you’ve heard all the descriptions of two stroke engines here and that. Well I got some good news, the two stroke engine’s on the way out. The four strokes are comin’ in. AMA has these indoor … races which are probably gonna have to all be four stroke engines because the two strokes do mix oil with the gasoline, like a chain saw. So they’re on the way out and that’s, that’s gonna help that problem. To silence these machines is not that difficult. I’ve seen um’ get quieter and quieter and quieter. I’m gonna show you a little devise here, Yamaha makes a 660 which is an engine twice the size of any of these race machines and these are used for deer hunting, they’re used on government land, they’re using on, on the forestry service. Now this thing if you’ll notice is done a simple thing, you see how this pipe just simply turns down. What that does instead of the sound going out, it just drops it to the ground. So what I, what I’m telling you that the technology is right on top of us to get this problem cured. The manufacturers are working on it. The, I mean it, it’s not that hard to do and I think Mr. Bennett could police his riders to be sure that the packing is in their exhaust and be sure that everything is like it’s supposed to be. And I think that, that, that, to turn this down right now when you’re right on the, the verge of all this technology coming in to quiet these things would be a shame. And that’s, that’s about all I got to say if anybody got, got any questions I’d sure be glad to answer um.”

Chairman Hawkins – “Thank you.”

Angela Beeker – “Mr. Chairman I think it would be appropriate to ask any of the parties if they have any questions for.”

Chairman Hawkins – “I was going to.”

Angela Beeker – “I’m sorry.”

Chairman Hawkins – “Does anyone have any questions, uh, before you sit down?”

Unknown speaker away from the microphone.

Chairman Hawkins – “Okay.”

Angela Beeker – “Parties, party.”

Chairman Hawkins – “Are you a party to the proceedings?”

Unknown – “A minor party but you said anybody so.”

Chairman Hawkins – “I’m sorry, just parties. Mr. Pressley.”

Chuck Pressley – “In reference to this gentleman’s comment, uh, some of the material that, that we’ve tried to learn and understand about is the difference in the stock product and the after stock product. Is it my understanding that, that the type of vehicles that are on your track are after stock products which are intentionally designed to be louder than the stock product becomes in, in this production of, of a motocross vehicle. Does that make sense, the question I’m trying to ask you?”

Chairman Hawkins – “Is, is that for Mr. Bennett or for.”

Chuck Pressley – “Yes. I, I, well, it’s directed because this gentleman is talking about sound so I’m not sure if this is.”

Chairman Hawkins – “You probably need to direct it to the gentleman that was making the comments. He may have a answer for it.”

Chuck Pressley – “Is it your understanding that the vehicles that run at the track are the afterstock products that are built and designed to be intentionally louder than the stock production models?”

Bill Harper – “Uh, there’s after market companies that sell high performance pipes. And I think what we’re addressing here that’s probably the source of the main problem we’ve got is these people that make after market pipes. There’s no difference in you going down the road and you see a Harley Davidson go down that road that makes a noise. Harley Davidson didn’t make it like that. You got these after market people that, that create this stuff. It’s cheaper and easier for the man to buy a stock motorcycle and leave it alone, it costs him less money. And this thing gets back to when you’re racing it really makes no difference. It’s like if you watch a Nascar race and everybody’s runnin’ a restrictor plate they’re all running slow but they’re all running together so it makes no difference. And I think it’d be a simple thing to operate the track and just mandatory make ‘um run stock exhaust and for Mr. Bennett to police ‘um to be sure that the packing is good in the muffler. And I think as time goes by that little turned down tip is dramatic…that thing that just keeps the sound from broadcasting, it just dumps it out on the ground. And that’s gonna be the next big technology. If, if it’s good for the deer hunter it’s gotta be good for Mr. Bennett.”

Chairman Hawkins – “Any other parties have questions?”

Mike Edney – “I’d like to call Mr. Bennett for additional rebuttal if I may.”

Chairman Hawkins – “Okay, please.”

Mike Edney – “First thing I’ll do, I’ll ask him to identify a document that I…I’ve marked it as Petitioners Hearing Exhibit number 100 for identification, ask Mr. Bennett to tell us where that came from.”

George Bennett – “I got it the first time I went down to, to the zoning office in Hendersonville.”

Mike Edney – “Tell the Board what it is.”

George Bennett – “It a, uses for, er, uh, uses for general industrial district of I-2.”

Mike Edney – “Does that include anything regarding the motor sports under special uses?”

George Bennett – “Um, I don’t see any, here. I don’t see anything on here.”

Mike Edney – “I’ll introduce, I’ll put this into evidence.”

Chairman Hawkins – “Okay.”

Commissioner Baldwin – “Could you pass that around Libby?”

Chairman Hawkins – “You, do you have any other rebuttal Mr. Edney?”

Mike Edney – “…also give you a copy of the Motor Sports Ordinance or is that the only document…”

George Bennett – “That’s the only document I got, and uh.”

Mike Edney – “Now, do you have any more … evidence about noise or mufflers or anything else you can tell the Board about.”

George Bennett – “No, uh, a, as far as uh, after market parts uh, usually most people who ride, and, there, there four, or four major bikes. I mean there’s Kawasaki, Suzuki, Yamaha and, and a Honda. And these, and these, there, it’s a competitive business to sell a dirt bike. So the stock, they’re gonna put the, the best they can on those bikes and, and a lot of the kids’ll think that, you know, they’re just kids. Some of um’ll go get an after market pipe, you know and, and think it’ll make their bike faster but, but the truth is, is, is if you need a, if, if you’re riding that bike so hard that you need an after market part then, then somebody will give you a bike. One of those companies will give you a bike and pay you to ride. Uh, but, it’s, it is cheaper and easier to, to go back and use, use stock pipes. And uh, some of the after market stuff as, as long as the pipes has packing it’s gonna be quiet, I mean it’s, if you come in there without, well, if you try to take the packing or something out of your pipe and make it louder it’s gonna reduce the performance of your bike. And uh, I mean some, some people do it and uh, you know I mean it, but uh, but it’ll, it’ll ruin your motorcycle. You won’t ride it very long. You know.”

Commissioner Young – “Can I ask a question?”

Chairman Hawkins – “Sure.”

Commissioner Young – “Mr. Bennett, do you, do you have, know why Nascar or other race cars take the mufflers and pipes off of there and they run straight pipes on their cars?”

George Bennett – “Huh uh. No. More horsepower?”

Commissioner Young – “More power. Then, and the reason being is because what goes in has to come out. The more, the more that you can exhaust out the more fuel you can consume without choking. And that’s why they do it. Now, my next question, do you allow these people that rides these bikes on your track to modify their bikes and take the mufflers and stuff off of ‘em?”

George Bennett – “No. You can modify it with an after market pipe but I’m not talking about a straight pipe or a, I’m, it’s, it’s a muffler. It’s just a, it’s just a, it still has packing and it still, it’s not a straight pipe or anything like that. You couldn’t, the way these bikes are built and designed you couldn’t ride it without a, without a muffler on it. It would melt your seat. It would catch your seat on fire and melt your plastic off the side of the bike. The muffler is right under the seat and the, and the pipe comes out the back and it’s up against plastic and, you just, the bike would not perform any better without a pipe. You wouldn’t get any more horsepower out of the bike. It’d rat, it’d rattle and shake so bad it’d fall apart. I mean the things, you just couldn’t, you couldn’t do it without, without a pipe. And I, an I wouldn’t let anybody ride without a pipe. I, see I’ve never seen that. I’ve seen people, I’ve seen ‘em lose their pipe, it fall off, but then they quit riding. I mean, you wouldn’t want to ride, you really wouldn’t wanna ride one of those without a, without some kind of an exhaust.”

Commissioner Baldwin – “I got a, I got a question for Mr. Bennett. Mr. Bennett based on your visit to our, our Planning Department and, uh, you said you received this”

George Bennett – “Um hum.”

Commissioner Baldwin – “from the Planning Department when you visited, Henderson County Planning Department. Uh, is, is there something in here that, that, that gives you the impression that a motor cross is permitted on the property that you were about to purchase?”

George Bennett – “Um hum. Yeah when we talked about it, we talked about it as a, as an amusement park, carnival or a”

Commissioner Baldwin – “Okay.”

George Bennett – “or a recreational park. At the time we were just, we gonna be a private club ride. I mean when we, when we first started this and. I mean it wasn’t gonna be a race track.”

Commissioner Baldwin – “Okay.”

George Bennett – “I still don’t know where this race track came from. I mean it’s, it’s really not. It’s, it’s not a race track. I mean we had a couple events, but, but it’s, it’s you know, it’s not a race track.”

Commissioner Young – “But it’s a motor sports track.”

George Bennett – “Yeah, but that’s a pretty broad definition if you look at how they define motor sports. I mean, two, I-26 is a big motor sport facility that goes right past Park Ridge Hospital if you, if you get on there at 5:00. I mean motor sports is anything self propelled, trying to get somewhere and, and, at a certain time. I mean, when I get on I-26 I try to get off of it as fast as I can so that makes it a motor sports facility to this definition. This is a broad definition. Two jet skis on Lake Lure would be a motor sports facility.”

Chairman Hawkins – “Any, any other questions?”

Commissioner Baldwin – “I had a question for, for Karen Smith. If you could come take this, take a look at this, could you.”

Karen Smith – “I, I’ve looked at it.”

Commissioner Baldwin – “You have?”

Karen Smith – “Yes.”

Commissioner Baldwin – “Can you tell me what, what version of our zoning ordinance this came out of?”

Karen Smith – “I can’t. Um, I can look at it quickly to see if

Commissioner Baldwin – “Okay.”

Karen Smith – “there are any other dates but.”

Commissioner Baldwin – “See if, if there’s anything amended beyond ’99.”

Karen Smith – “Just from this text it looks like the latest amendments to it were done in 1998.”

Commissioner Baldwin – “’98.”

Karen Smith – “To other sections and to, um, the sections dealing with communications towers were amendments through March of 1998.”

Commissioner Baldwin – “’98. Okay. Uh, if, if, uh, Mr. Bennett visited your office in, in 2001 uh, is there any reason, you have any explanation as to why he’d been given old zoning ordinances?”

Karen Smith – “The only, what I told Mr. uh, Moyer, I, I don’t know that that was given to him my staff member or not but, that when you go through a code change there is a lag in the, um, updating the actual text of the ordinance. However we did have copies of the open-use and other related amendments available so. There would have been a text somewhere that would have shown what those amendments were.”

Commissioner Baldwin – “Last question. Does, does, does this ordinance, would this ordinance have given him permission to operate a motor sports facility or race track or motorcycle on the property.”

Karen Smith – “It would probably have required a zoning interpretation based on what he was told, what the zoning administrator was told at that time. Um, for example if, there’s a listing there for any industrial use provided it’s not, um, Mr. Young has it in front of him. Um, I can’t remember if it’s noxious or, there’s some impact on”

Commissioner Young – “…provided that such not be injurious or obnoxious to the surrounding development.”

Karen Smith – “If the zoning administrator had not found that any other use on the list may have covered, uh, a proposed motor cross track, the zoning administrator may have suggested that that was the, the use that was sort of open ended to allow it. It still would have required a zoning permit however.”

Commissioner Baldwin – “Was there a zoning permit issued?”

Karen Smith – “No.”

Commissioner Baldwin – “By your department.”

Karen Smith – “No.”

Commissioner Baldwin – “Okay.”

Mike Edney – “Could I ask why a zoning permit would have been necessary for something that’s a …”

Karen Smith – “We issue zoning permits for all uses that are permitted by right, conditional uses and special uses. They have to come in make sure they still comply with the dimensional requirements for the district, any buffering requirements, parking, off street loading and that sort of thing. So there is still a zoning permit required for any of the uses that are permitted in the zoning ordinance unless you’re in the open use district.”

Commissioner Baldwin – “So you’ve never issued a zoning permit for this property to be used as a race track, motor sport.”

Karen Smith – “I have not, and I’m not aware that anyone in our department has.”

Commissioner Baldwin – “Has your department ever issued a notice of violation?”

Karen Smith – “Yes.”

Commissioner Baldwin – “They have.”

Karen Smith – “Yes.”

Commissioner Baldwin – “Okay. Thank you.”

Chairman Hawkins – “Any, any other questions by the Board? Is there any uh, rebuttal from any of the parties, other parties?”

Karen Smith – “Mr. Chair were, were you opening up to rebuttal?”

Chairman Hawkins – “Yes.”

Karen Smith – “I, I just one, one point I wanted to make. I, I was trying to keep the violation issues out of this, um, because is a way, or means for Mr. Bennett to come into compliance but there were some, several statements made by several of the parties um, at the prior two hearings about noise complaints and about complaints in general and I did just wanna, um, indicate to the Board that the first, uh, official complaint and formal complaint that we received came in on February 19^th, 2002 from Mr. Doug Dunlap and I do have a copy of that uh, complaint, uh, that I can admit to the record if you care to see if again. I don’t know if it’s relevant but, I was trying to respond to these other statements.”

Chairman Hawkins – “Okay. Do you wanna go ahead and admit that. Any other rebuttal from any of the parties? Okay then at this time we’ll hear uh, closing remarks uh, from, uh any of the parties will be allowed to make their closing arguments to the Board. Remind you this is not a time to enter new evidence or testimony but a time for parties to comment on the evidence and testimony which has already been presented to make your arguments as to whether or not the Board should grant the petitioner’s request. Mr. Edney you want to go first or last?”

Mike Edney – “I’ll go last.”

Chairman Hawkins – “Okay. Ms. Smith do you have any other closing remarks?”

Karen Smith – “I just have some brief ones. Um, just wanted to reiterate to the Board that for the same reasons that were expressed to you, uh, through the motions of the Planning Board, uh, I cannot support the proposed special use permit application mainly because the proposed facility will not meet the two, two of the significant site specific standards in an I-2 zoning district, the 500 foot setback and the two mile separation from health care. Substantial variances would have to be approved by the Board in order to grant the special use permit and it does not appear at this time that the applicant will be able to satisfy all of the criteria needed, uh, for the Board of Commissioners in order to grant the variances. Um, if the question, or the issue is really a question of whether the standards for this special use permit for all or certain motor sports facilities in the I-2 district are appropriate, and that becomes a matter of amending the zoning ordinance or considering such amendments which is not the subject of this hearing. If the Board decides to grant the variances I would suggest that if, uh, possible legally, that they be made specific to the special use permit such that they could not be used um, by any future, future owners of the property unless they were to operate it in accordance with the granted special use permit. Um, now that the Board has heard all of the evidence if the Board finds it is able to grant the variance, variances I would suggest that the Board um, ask the applicant to provide additional information as, uh, requested in my memo to the Board. And then also if the Board decides to grant the special use permit that you consider applying conditions such as those I have specified in my memo to help ensure that the use will meet the requirements for a special use permit for a motor sports facility and other standards of the zoning ordinance. Thank you.”

Chairman Hawkins – “Mrs. Corn would you call the first party.”

Elizabeth Corn – “Chuck Pressley.”

Chuck Pressley – “On behalf of the uh, Foxwood Property Owners Association which uh, includes 59 owners and 44 uh, permanent residents we would ask that you not uh, allow this variance to take place. Again because we feel that it will have a substantial impact on uh, noise and environmental pollution as well as potential negative impact uh, on property values in our area. We would ask the Commission to remember that this is clearly a business, uh, Mr. Bennett originally stated that uh, his intent, his business plan was to operate up to 35 weekends per year. Um, while he insisted it is a, a, intended for the purpose of family recreation, um, we would encourage him to look, to answer far more many questions about how to be a good neighbor uh, how to be involved through an established organization, and solicit the support of the full community before um, interjecting uh, such a business in the area. We know that you know your, your job and your responsibility. We know that you know that um, an ordinance such as this is designed to provide greater good for the majority of its members and we do appreciate, uh, your consideration of our request that you not grant this variance. Thank you.”

Elizabeth Corn – “Janice Moore.”

Chairman Hawkins – “Ms. Moore you have any closing remarks?”

Janice Moore – “Good evening, um, ought to begin by saying I don’t have a lot of knowledge about motorcycles. I know, the noise they make. What I’m here to speak about is that, just five years that we had a motor sports facility ordinance that was, um instituted. And some of you were a part of developing that ordinance. It took us almost two years worth of meetings and planning, hundreds of man hours, hundreds of people. We heard testimony that, by qualified witnesses as to distances, decibels, environmental disturbances, real estate devaluation, and how much this county needed to develop a land use plan. This plan, although it wasn’t perfect was well thought out and good. It gave appropriate buffers to somewhat protect residences and help facilities with the noise and pollution. And this county is continuing to struggle with instituting a land use plan. It’s making progress, but it seems like that we’re constantly fighting one issue or another. It seems like that we’re caught between a rock and a hard place. We don’t have a specific ordinance to protect us, our homes are forever ruined by some totally un, by something that’s totally inconsiderate of um, the residents around it and when we do have an intact ordinance then we have to deal with it being challenged. Uh, personally I’ve heard testimony here that compares this from anything from a soapbox derby, um, I take exception to that, I grew up on Mt. Tabor in Portland Oregon and we had a soapbox derby tract right by my house. Soapbox didn’t have motors, they were very quiet little wheels going down the road. Um, I’m hearing that this was, that this is going to be up to three hundred people a day, every, all weekend from daylight hours, from the time you wake up to the time you go to bed. Um, I take exception to that. Variances are there to be granted, but when a variance is so extreme and when it effects people around it I think we’re dealing with a difference situation totally. When we’re dealing with a variance of moving a building over five feet or something or running a little home business that’s one a, one issue but this affects a lot of people when you’re dealing with a lot of noise. I don’t know how motorcycles can be made to be silent. And especially for us that live up, up hill from this I don’t see how the buffers can stop the noise. Um, I also have heard testimony that, that this was only supposed to be a small little family facility. Although, I did also hear testimony that there was a loan taken out with the idea of a, of a uh, a business plan from the start on this so I feel like this was, this was um, planned to be a large business to start with. I don’t see any way that you’re gonna be able to police this. From my experience so far just with the zoning issue there’s violations cropping up all over the places, all over in the area that I worked with in the zoning already. And there is nobody that polices this. This puts the burden upon us to come down and put in a, official complaint everytime something goes on that’s in violation. And that’s all I have to say thank you. I just um, would really, um, ask that you do heed the ordinance that was put in, and um, don’t set a precedence for these kind of changes. Thank you.”

Elizabeth Corn – “Mark Wright. Excuse me.”

Chairman Hawkins – “Mr. Wright do you have any closing remarks?”

Elizabeth Corn – “Mr. Cobb.”

Chairman Hawkins – “Mr. Cobb do you have any closing remarks?”

Mr. Cobb – “Yes, Park Ridge Hospital respectfully requests that you do not grant a variance for this because of the large variance request. Thank you.”

Elizabeth Corn – “Douglas Dunlap.”

Douglas Dunlap – “I think there’s been plenty, plenty said on both sides, maybe too much. I would also ask that you deny the request for the, for um, the large exception to the variance. And I notice on the, the Mission Statement over here is to protect life and property I, I hope that still applies. Thank you.”

Elizabeth Corn – “Dorothy Freeman.”

Dorothy Freeman – “Well here’s a few things that weren’t said. The Planning Board has unanimously advised the Commissioners to deny this variance request. What were the stated reasons of how to have their concerns been satisfied that the request should now be granted. If this variance is granted what guarantee to the citizens who oppose the variance have that another variance will not be given which will basically undermine what entire, what, what we have with the, uh, ordinance at this time. In light of the fact that Mr. Bennett was operating illegally, if he was given this variance what assurance do we have that the others who violate standing laws will not be granted similar rules. If there was probably at least ten million dollars worth of property in Hickory Hills alone and considerably more in Grimesdale and Whispering Hills, why is this investment of many more citizens not as, of as much consequence as one man’s thought about his investment. Since Commissioner Hawkins and Moyer have been given the express wishes of their constituency, will they now go against the very ordinance they themselves put in place. In light of the fact that Mr. Bennett and Mr. Edney are asking for a 83% distant reduction from the health facility from 2 miles to 1/3 of a mile and about 80% reduction of a buffer from 500 feet down to 100 feet is there any point of having an ordinance at all since the variance is in it’s essence, is not a variance but virtually disregarding any restrictions. Uh, I guess I’m one of the older residents that live around Naples, my time is limited what I can do with my property. When I hear this, the best property I have will be on the end of the hill where it has the view of Pisgah. And I can’t farm forever. I’d like to but I know the body don’t like to do it. And it amounts to land values have increased so much in Henderson County and if I have to go by the rules of getting permits, getting a septic permit that’s gone up from $45 to $500. I mean we do have a large amount that they’re trying to get rid of in sense, holding it down, Any, anything like this that is put in here I think we should have a three year restriction till Highway 25 is completed so we know what this will handle. I do not think they will handle anything as some of the people said, as many as 1,000 people not participating but sight seers going to see this track. You’re gonna have one congested place on the middle lane in Highway 25, turning in or to any of the, and you’re gonna trap the people that are living there on the opposite sides of the road so they will be, actually can’t get out of their driveways. It happened in Bristol, and any racetrack they ever build whenever a race is going on. He says it’s going to be a little thing. Do we have a guarantee it’s gonna be a little thing. We had someone suggest that there shouldn’t be an asphalt plant. Well, we got an asphalt plant, there’s not anything we can do about it. But it, it’s there. We have two asphalt plants in Henderson County, I’m not proud of um, but I’d like to have, I’d, my, my roads are all gravel. I really don’t have a problem gravel roads. And anybody that buys a lot from me realizes that until they say I have to pave it I’m not gonna pave it. Only because I like the rural feeling of what I had developed out there. And that’s basically all I have to say about that. I appreciate your time.”

Elizabeth Corn – “Gerald Nash.”

Chairman Hawkins – “Mr. Nash do you have some closing remarks?”

Gerald Nash – “Thank you. From my experience decibel readings taken at a point in time, at a point and location may be correct and accurate for the recording. However that is only a correct and accurate in recording for that precise time and point of location with the wind direction, atmospheric conditions and state of envelopment of surrounding vegetation growth. These changes, these changing conditions are much more difficult to record and to predict if not totally outside of accurate science. Because of the variables related to this science and the inability to control such therefore such evidence in not factually but speculative, related to a future time and environment. From my experience and monitoring noise for OSHA, I’ve learned that the decibel reading may be in full compliance but the duration and quantity of noise generated may be very uncomfortable. The duration of noise of sound level in the case before us was recorded but only at that snapshot moment. The actual noise in real life is an unknown factor in this case and cannot be documented and represented here today, only projected by speculation, juggling numbers, and imagination and hoped for conclusions. One can project that a decision to allow such variances as applied for, the full potential in development can take place. That full potential is not represented in the documentation of this application. The reality of the intent of the application does not only represent the applicant identified today but potential partners and or future owner/operators as well as future property owners. Therefore any noise records of today do not reflect the future unrealized noise records. Nor does the application reference the future relationship to the National Motocross Racing organizations and operations. The full intent of the owner applicant or future owners is not specific in the current application, but it is my understanding that such zoning status represented in today’s application stays with the, with the property. Approval to today’s request does not limit future growth and results except to the extent of the applicable County statutes and ordinance as enforced at the time of the application. My concerns are elevated with a speculated devaluation of property values of acreage that is uh, owned relatively close to that property. This land is in essence in practicality an endowment for Fletcher Academy. The land to be used to ensure the long term viability of the educational program of our organization. It’s obvious to note that the location of this land within the current community environment is ideal for future development of apartments and single family homes as well as other development prospects and would be an appropriate use to utilize endowment benefits. The approval of these variances could strongly encroach upon the value of this future support to the successful educational program of our campus. I appreciate the responsibility that you all have, and I submit this, this information for your consideration. Thank you.”

Chairman Hawkins – “Thank you.”

Elizabeth Corn – “Dave Sherlin.”

Chairman Hawkins – “Mr. Sherlin do you have any closing remarks? Okay.”

Elizabeth Corn – “James Owen.”

Chairman Hawkins – “Mr. Owen do you have any closing remarks?”

Elizabeth Corn – “Bill Harper.”

Chairman Hawkins – “Mr. Harper do you have any closing remarks.”

Bill Harper – “No.”

Elizabeth Corn – “Frank Cox.”

Chairman Hawkins – “Mr. Cox do you have any closing remarks? Okay.”

Elizabeth Corn – “Mike Edney.”

Mike Edney – “Just a very few if I may. I think one problem we’ve run into is the fact that the ordinance that we’re dealing with basically was designed to address an automotive Nascar type track. So because of the way it’s designed and all of the requirements that have to be addressed we have to put together a site plan and an application that makes this look like a huge facility with tons of people and everything else not because that’s what it is or that’s what it has been or that it’s intended to be, but because we have to answer and address 50,000 things in the ordinance that if I was building an Nascar track would be absolutely appropriate for me to address. That being said, we’ve addressed those as best we can, as the process has gone along we have more than once told the Planning Department that we can and will comply with absolutely everything in that ordinance except the two things that are physically impossible to comply with. That’s the two mile separation and the 500 foot, uh, setback buffer. Uh, we ask that you grant the variance and then in the special use permit you make it subject to us coming into full compliance with everything uh, within the ordinance, uh, everything that, uh, your Planning Director has asked us to address, and we will do that. One of the comments had to do with whether or not uh, there would be sedimentation erosion getting into the river. One of the requirements is that we have and comply with a sedimentation and erosion control permit. We have done that, and as it will be redesigned we will get a new permit, work with those people. We’ve got the sedimentation ponds in place. All those type issues have been addressed or will be addressed, and should be as a part of any special use permit, be included as a requirement before we open, uh, business. Uh, you’ve seen the letters in your packages so I don’t think I’m stepping where I shouldn’t be, a couple of facilities wrote letters originally that said we’ve got no objection to this, uh, product going forward as it has in the past. Uh, they come back later and say, oh no, we’ve been told that it’s not what you’ve had in the past so we object to it now. That is, well, two things. One is the process and what we had to come through and apply with. That scared ‘em off a little bit. And then I think also there’s some people talking in the neighborhood saying things that weren’t, not exactly true also. What Mr. Bennett wants is a track where the kids in this community and in neighbor, neighboring communities can come and have a good time. We would like the opportunity to, two or three times a year have events there. Any event that would go beyond what you initially approve would have to come back to you or the Planning, or the Planning Board, I don’t know which, for a special event permit if we go beyond the scope of what we’re talking about now. Um, a lot of the folks comments make me think that they don’t understand how the special use process works. And basically they say we could open the door with this one and go on and do something else. I think the Board knows and the community needs to know the special use permit will be very detailed as far as what can and cannot be done. It will limit hours of operation, it will limit number of people, number of bikes, uh, noise levels coming off the property, dust coming off the property, fire, emergency, rescue, all those things will be addressed specifically in the permit. And if we ever choose or try to or want to expand, we would have to come back before this Board and ask that the permit itself be amended. And the Board would not amend that permit without a special hearing similar to what we’ve had here where everyone in the community will have an opportunity to uh, have input. I think this Board, some of the Board members will at least, be familiar with Carriage Park. Carriage Park is a special use facility and I don’t know how many times they’ve come back before the Board to amend their special use permit to address A, B and C. So it’s not a one time deal that’s said and done, unless you wanna live by the ini, original, uh, game plan. So I hope the community understands that. It seems to me that, I don’t know whether to say ‘penny wise and pound foolish’ or ‘you can’t see the forest for the trees’. Again it goes to not a total understanding of why we’re really here and what we’re seeking to accomplish. We are in an I-2 general industrial zoning classification. What that means is we can put an asphalt plant on that property. We have to comply with the state regulations and what not, but there are no County regulations to prevent us from doing that. I talked to Johnny Pace today, he said it would be a great site for one. I would propose and suggest that these folks back here would not want an asphalt plant on that property. Smell, traffic, all the different things you folks and we’ve all heard before. We can put a tire recapping facility, truck terminals, car lots, laundries, cemeteries, gas stations, uh, storage plants, warehouses, it would even qualify as a junk yard, we would have some of the different things to deal with. Um, we can have a County fair there with a hoochie coochie show, we can have carnivals. Uh, we could have an amusement park, we can put manufactured homes, we can put an airport there. There’s actually some people looking for a place for an airport and this one’s not long enough for their needs but in theory we could put an airport there. Uh, we could put communication towers. We can, bottom line is we can put a lot of things there that these folks would hate a whole lot more than a, uh, motocross place for kids. And we could do it without having to come before this Board and ask you. So what Mr. Bennett is doing, basically is he is being, he’s being nicer than he has to be by coming and subjecting himself to the frustrations that this Board can put on him. I suggest to you if you think about it and if these folks back here think about it, it would be 10,000 times better to have a motocross track where the Board of Commissioners has limited the noise, has limited the times of operation, has limited the dust, has limited all these other things. Where otherwise you would have an asphalt plat or something else that the Board cannot limit even if you wanted to. So the Board, and therefore the people have some control over this situation by granting the variance and then the special use. I don’t know if I said that very well or not. Mr. Hawkins did I say it okay? You understand what I’m saying.”

Chairman Hawkins – “It’s your nickel Mike.”

Mike Edney – “Okay. I’ll say it again because I don’t think it came out that clear. If, if I put an asphalt plant there I can run it 24/7, I can stink up the whole valley, I can put big ol’ spotlights out there, I can shine em’ up on Stoney Mountain, and you or these folks can’t do a dern thing about it. If you let me put our motocross track there, you can tell me whether I can run it, day, what hours. I can’t run it till 1:00 on Sundays or Saturdays. I can only have ten bikes at a time out on the track. I have to put sprinklers in so I keep the, uh, dust down. All those things are gonna benefit the community and therefore increase or in, or preserve their property values. More so than the alternative. So by subjecting themself to this Board and to this ordinance he is being a good neighbor even though he doesn’t live there. The only other thing I would say is, well, let me say one thing. They talked about upholding the law and the ordinance and all this other sort of stuff. The various procedures and special use procedures are part of the law. So by allowing them you’re not circumventing or go around, going around the law. You are complying with the law. And the last thing I want to talk about, and I’m gonna do it very briefly is the political aspects of this, and I’m only doing it because one of our political activists came and spoke to the Board. You folks know that I was up there for eight years. I’ve read all the editorials and this other stuff. Uh, well let me say one more thing because Ms. Lane did attack me. I don’t think it’s appropriate for an employee of the Times-News to use their own ink and paper to express a personal opinion when you or I are limited to 300 words on their editorial page. Um, and I would, I would suggest that if my ethics in following the law are improper then her ethics in using her position of authority at the paper to, uh get on her own, uh, soapbox is just as bad if not worse. I’ll close by saying that in all the years of politics I’ve been involved in in Henderson County, anytime the Times-News went one way 99% of the time the proper thing to do was go a 180. And I think you’ll all, you’ll smile and you’ll agree with me, and I, I ask you to do the right thing and not the political thing. Good night.”

Chairman Hawkins – “Thank you. Mrs. Beeker are there any other items you can think of that the Board needs to cover before we go out of Public Hearing?”

Angela Beeker – “No sir.”

Chairman Hawkins – “Any Board members know anything we need to cover before going out? Then I move that we go out of Public Hearing. All those in favor of that motion say aye.”

Aye in unison.

Chairman Hawkins stated that there were two separate items that the Board was considering. First was a request for a variance and second was a request for a special use permit. He spoke to the design of the Motor Sports Ordinance and the delineations therein for major versus minor motor sport events. He also stated that while there seemed to be a consensus that such a facility would be good for the kids in the County, that was not one of the questions the Board had to make a determination on. The Board was challenged first to determine whether to allow the variance. To be able to allow a variance, the ordinance and therefore the law is very specific about what the Board of Commissioners has to find to issue a variance.

One specific that must be found by the Board was that “there are practical difficulties or unnecessary hardships in carrying out the strict letter of this chapter as demonstrated by the following…” To allow a variance the Board has to find a basis of affirmative findings of fact on three separate criteria. The first criteria was “if the applicant complies with the literal terms of the chapter he/she cannot secure a reasonable return from or make a reasonable use of the property.” Chairman Hawkins stated that the petitioner himself had indicated that there are other uses of the property.

The second criteria was “the hardship of which the applicant complains results from unique circumstances related to the applicants land.” Chairman Hawkins noted that the applicant’s land was in the flood plain and had been for at least 60 years.

The third criteria was “the hardship is not the result of the applicant’s own action.” Chairman Hawkins stated that evidence had been presented that there was an ordinance in place at the time of purchase that required the conditions for which the variance was being requested. Those conditions were the 500 feet and the two miles from a health care facility.

Commissioner Moyer stated that while he would support the motocross facility, he did support the ordinance that had been put in place as well as staff’s recommendation. He felt that if this were to be changed, it should be changed by amendment and should not be modified by variance. Because of that he could not support the granting of the variance.

Commissioner Baldwin stated that if the Board granted the variance, the spirit of what they would be doing would be amending the ordinance. He did not feel that was what a variance was there for. He stated that the Board would have to find that no other reasonable use could be made for the property, which did not appear to be the case.

Commissioner Messer stated that he understood about motorcycles and riding, having done it. However, the Board makes laws to go by laws and this was just too much of a cut. He stated that he would be unable to support the variance.

Commissioner Young felt the variance request was too extreme, and granting it would open the door to similar requests. He agreed with previously made comments, and stated he too would be unable to support the variance.

Chairman Hawkins stated that it was the consensus of the Board to deny the variance and direct staff to prepare the written decision in accordance with that. There being no further discussion, Chairman Hawkins stated that they would have the written response denying the variance within 45 days. Angela Beeker clarified that the consensus also included the denial of the special use permit.

Adjourn

Chairman Hawkins made the motion for the Board to adjourn. All voted in favor and the motion carried.

Attest:

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