March 5, 2012 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 765 Meeting of the Johnston County Board of Commissioners March 5 , 2012 6 00 pm The Johnston County Board of Commissioners met in regular session Monday , March 5 , 2012 at 6 00 pm in the Commissioners Meeting Room , Johnston County Courthouse Annex , Smithfield , North Carolina The following members were present Present Chairman Allen L Mims , Jr , Vice Chairman Jeffrey P Carver , Cookie Pope , Wade M Stewart , W Ray Woodall , DeVan Barbour , and Tony Braswell Absent None Also Present County Manager Rick J Hester , Clerk to the Board Paula G Woodard , and County Attorney David F Mills Chairman Allen L Mims , Jr called the meeting to order at 6 00 pm and the following business was transacted 1 Announcement Regarding Rezoning Case 12 - 02 Chairman Allen L Mims , Jr , announced that , at the request of the applicant , Case 12 - 02 is tabled until the May 7 , 2012 6 00 pm meeting 2 Portrait Presentations of Former Johnston County Commissioners - Hoyt and Larry Castleberry The Board recognized former Johnston County Commissioners Hoyt Castleberry and Larry Castleberry and presented framed portraits of both gentlemen to their family , which will be displayed in the County Administration Office along with other former County Commissioners Hoyt Castleberry served on the Board of Commissioners from 1972 until his passing in July of 1976 , whereupon his brother , Larry Castleberry , was appointed to fill the remainder of the term The Board thanked the Castleberry Family for the dedication and service that both Hoyt and Larry Castleberry provided to the County during their lives Clyde Castleberry , son of Hoyt Castleberry , addressed the Board and introduced his family Mr Castleberry stated his family is dedicated to Archer Lodge and Johnston County and his father took being a County Commissioner very serious and was proud to serve Sharon Castleberry , daughter of Larry Castleberry , spoke on her father’s service to the County and thanked the Board for undertaking the portrait project Ms Castleberry stated her father was very good at making people feel comfortable and both he and Hoyt understood what it meant to serve as County Commissioners 3 Public Comment A Citizen Concern – Discharge of Firearms in Oak Ridge Subdivision Steve Beals , 124 Oak Ridge Drive , Willow Springs , Oak Ridge Subdivision , informed the Board of a situation in Oak Ridge Subdivision whereby a resident in the subdivision located at 121 Oak Ridge Drive , is shooting firearms in close proximity to other structures Mr Beals expressed his concerns over the safety issues associated with shooting a firearm in a residential subdivision and noted that he and the other residents in Oak Ridge Subdivision have been reporting the incidents to the Johnston County Sheriff’s Office Mr Beals referred the Board to the Wake County firearms ordinance and he asked the Commissioners to consider amending Johnston County’s firearms ordinance Mr Beals submitted a copy of the plat from Oak Ridge Subdivision , copies of all police reports , and a copy of the Wake County firearms ordinance to the Board for their review Mr Beals stated the Sheriff’s Office has responded to all their calls and has been working with the residents ; however , he believes the issue needs to be addressed through the ordinance Upon a question by Commissioner Cookie Pope , Mr Beals reported the property owner is shooting in his own backyard and that there is no commercial shooting range At the inquiry of Chairman Allen L Mims , Jr , Mr Beals confirmed the Sheriff’s Office has visited the property Mr Beals stated the property owner is at times complying with the ordinance and at other times is not Page766 March 5 , 2012 – 6 00 pm Continued Mr Beals noted the subdivision residents have calls in to the Sheriff’s Office as late as 11 00 pm ; however , the Sheriff’s Office must witness the property owner shooting in violation of the ordinance Mr Beals stated one of the police reports references a berm on the subject property and he noted the Sheriff’s Office has asked the property owner to increase the height of the berm , but he is unsure if the berm has been raised Commissioner Tony Braswell asked if there are restrictive covenants for the subdivision Mr Beals stated there are restrictive covenants ; however , there is no homeowners association He stated the restrictive covenants do not address firearms Mr Beals reported the subdivision is 20 years old and the area was very rural when it was first constructed , although presently approximately 35 houses are being constructed right next to them Kirk Strother , 204 Clifton Drive , Willow Springs , reported he lives down from the property owner in question and that he has had bird shot fall on his vehicles in the past Mr Strother stated he has reported the incidents to the Sheriff’s Office Commissioner DeVan Barbour asked how long the matter had been going on Mr Beals reported the shooting began approximately six months ago when the property owner moved in to the subdivision Joe Heil , 125 Oak Ridge Drive , Willow Springs , reported he lives two doors down from the property in question and he stated the shooting begins anywhere from 7 00 am to 7 30 am with hundreds of rounds of ammunition going off Mr Heil stated his grandchildren no longer feel safe to swim in the pool in the backyard and he asked the Board for help with the situation Chairman Mims noted the firearms ordinance was also added to the noise ordinance and he asked if there were possible noise violations Mr Beals stated he has checked into the noise ordinance and has been informed that the property owner is allowed to make noise all day and there is nothing that the Sheriff’s Office can do Ginger Newsom , 108 Oak Ridge Drive , Willow Springs , reported they have tried to make contact with the property owner but have been ignored Ms Newsom stated the matter has become a safety issue because the property owner is shooting while children are getting off the bus in the neighborhood She stated the shooting begins in the morning and has continued all night at times Ms Newsom stated she has no problem with the property owner’s right to own a gun ; however , she stated there is a time and place and she wants the property owner to respect the residents in the neighborhood Mr Beals asked the Board to review the police reports he submitted and noted the Sheriff’s Office has visited the property , but the property owner would not come to the door Commissioner Jeffrey P Carver asked if the property owner in question has permission to shoot onto the rear tract of land which is approximately 50 acres Mr Beals reported the individual does not the rear property owner’s permission to shoot onto that tract of land Commissioner Wade M Stewart stressed that something needs to be done to help the residents in Oak Ridge Subdivision , but he questioned how the situation could be addressed Following discussion on the matter , Chairman Mims stated the Board would review the information submitted by Mr Beals and discuss it with the County Manager and the County Attorney to determine what can be done Commissioner Barbour commented that the situation is an example of why the firearms ordinance was adopted and he stated something needs to be done B Comments by Dennis Nielsen Dennis Nielsen , 9485 NC Hwy 39 , Middlesex , addressed the Board regarding the previous Public Comment item concerning Oak Ridge Subdivision Mr Nielsen stated he believes the individual that isPage767 March 5 , 2012 – 6 00 pm Continued shooting firearms in the subdivision does not represent the gun community and he asked the Board not to amend the Johnston County firearms ordinance because of the actions by one person Mr Nielsen thanked Chairman Allen L Mims , Jr , the County Manager , and the County Attorney for recently meeting with him to discuss his issue of trying to obtain a machine gun permit Mr Nielsen stated the County Attorney has agreed to provide him with an answer to his complaints and noted that as of today , he still has not received a machine gun permit from the Sheriff Mr Nielsen reported his business has been affected and if he is unable to get any support , then he will have to move his business to another County where he can obtain the permits 4 Public Hearing Rezoning and Special Use Requests Advertised – In The Smithfield Herald – February 22 and 29 , 2012 Certified letters were mailed to adjoining property owners on February 21 , 2012 Notices were posted at the locations on January 3 , 2012 for Cases 12 - 01 and 12 - 02 The Chairman opened the Rezoning Hearing for Case 12 - 01 Case 12 - 01 Petition to rezone 006 acres of a 65 acre tract located at 79 Glen Road in Cleveland Township from Agricultural Residential AR to General Business - Special Use District GB - SUD Tax ID 06E02002T Owner Swift Creek Improvements LLC Applicant X - Tech Internet Café Parkash Patel Planning Director Berry Gray stated the petition is to rezone 006 acres of a 65 acre tract located at 79 Glen Road in Cleveland Township from Agricultural Residential to General Business - Special Use District Mr Gray noted the special use request associated with the rezoning Mr Gray reported the existing land use is zoned Agricultural Residential and Interstate Highway Interchange and used for a commercial shopping center The surrounding land uses are zoned Agricultural Residential , Agricultural Residential – Special Use District , Community Business , General Business – Special Use District , Industrial 2 , Interstate Highway Interchange , and Interstate Highway Interchange – Special Use District and used for retail , restaurant , and other commercial uses The area is located within a designated Primary Growth Area on the County’s Comprehensive Land Use Plan which denotes an area in which high levels of growth pressures currently exist or are anticipated near term Additionally , the site is located within a “ Regional Centers ” activity node Applicant Parkash Patel , 2908 US Hwy 301 , Wilson , addressed the Board Mr Patel stated the Patels not only operate internet cafes but also own and manage Subway restaurants and hotels Mr Patel stated they operate several internet cafes and he is well versed in business and understands proper management and operation Mr Patel added he believes they can compete with the other internet cafes in the area and he asked the Board to approve the request At the inquiry of Chairman Allen L Mims , Jr , Mr Patel reported he also has internet cafes in Goldsboro , Rosewood , Rocky Mount , Sanford and Mount Olive and has never had any problems at those locations Mr Patel noted he sets an age limit requirement of 18 years for his internet cafes Mr Gray reported the Planning Board recommended approval Commissioner Wade M Stewart asked if the owners of the property were in support of the rezoning Mr Gray reported the owners had also signed the application petitioning the rezoning There being no further comments , the Chairman closed the Rezoning Hearing for Case 12 - 01 Decision on Rezoning Case 12 - 01 Case 12 - 01 Petition to rezone 006 acres of a 65 acre tract located at 79 Glen Road in Cleveland Township from Agricultural Residential AR to General Business - Special Use District GB - SUD Tax ID 06E02002T Owner Swift Creek Improvements LLC Applicant X - Tech Internet Café Parkash Patel Commissioner Jeffrey P Carver moved the Board approve rezoning case 12 - 01 to rezone 006 acres of a 65 acre tract located at 79 Glen Road in Cleveland Township from Agricultural Residential to General Business - Special Use District Commissioner DeVan Barbour seconded the motion , which carried by unanimous vote Page768 March 5 , 2012 – 6 00 pm Continued The Chairman opened the Special Use Hearing for Case 12 - 01 Case 12 - 01 To allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in the General Business and Interstate Highway Interchange Districts Owner Swift Creek Improvements LLC Applicant X - Tech Internet Café Parkash Patel Those wishing to speak on Special Use Case 12 - 01 were sworn in by the Clerk to the Board Planning Director Berry Gray introduced the special use case and stated the request is to allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in the General Business and Interstate Highway Interchange Districts Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 12 - 01 on November 29 , 2011 At that time , the applicant was informed of the following • If approved , applicant must provide to the Planning Office a Site Plan for their review and approval • Applicant must comply with the requirement of the Johnston County Land Development Code regarding landscaping , buffering and fence or any additional requirements as approved by this Board • Applicant will be notified in writing of the Board’s decision • If denied , no application can be accepted for the same use affecting the same property for a period of twelve 12 months and that their right of appeal to the Superior Court must be exercised within thirty 30 days of the receipt of notice of denial by the Board of County Commissioners • Applicant’s Special Use Permit will expire at the end of twenty - four 24 months if it is not used as permitted within the time period • When necessary , staff informed the applicant of further Planning and Zoning Department requirements and the requirements of other departments such as soil erosion and sedimentation requirements , Health Department regulations , stormwater and public utility requirements • Subsequent to the pre - application consultation , all required notices were mailed to property owners within 500 feet The property was posted and notices of public hearings were advertised in accordance with the requirements of the North Carolina General Statutes On January 17 , 2012 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 12 - 01 and made the following recommendations Upon a motion by Mr Edwards to approve the Rezoning of Case 12 - 01 , seconded by Mr Massengill , carried by a vote of 4 - 3 with Gathers , Smith and DeLaine dissenting Browder did not vote , the Planning Board recommended approval of the Rezoning for Case 12 - 01 Upon a motion by Mr Letchworth to approve the Special Use Conditions of Case 12 - 01 , seconded by Mr Edwards , carried by a vote of 4 - 3 , with Gathers , DeLaine and Smith dissenting Browder did not vote , the Planning Board recommended approval of the Special Use Conditions for Case 12 - 01 Finding of Facts for the Special Use Permit 1 That the use or development is located , designed , and proposed to be operated so as to maintain or promote the public health , safety , and general welfare ; Applicant This space located at 79 Glen Road , Garner , NC 27529 in the Food Lion shopping center We will have approximately 35 internet terminals for our customers We will adhere to the ordinance set by the county as far as hours of operations , we do not allow loud music , loitering , drugs , or alcohol on these premises Staff The applicant is proposing to use an existing building to operate facility The applicant will be subject to special use conditions which will ensure that the development maintains the public health , safety and general welfare of the community 2 That the use of development appears to comply with all required use and intensity regulations of Articles II & IV of the Johnston County Land Development Code and the applicable specific standards in section 14 - 257 and with all applicable regulations ; Applicant This development has already been constructed , it is a large shopping center with an anchor Food Lion store It maintains compliance with all codes Staff This existing building meets the setback and access requirements and complies with the use and intensity regulations as set forth in the Land Development Code 3 That the use or development is located , designed , and proposed to be operated so as to maintain or enhance the value of contiguous property , or that the use or development is a public necessity ; Applicant Our site is located at the end of the Food Lion shopping center Approximately 2,400sf will operate under the guidance set in the lease We offer a safe and clean atmosphere for our customers I feel our surrounding business owners will see an increase in revenues from our customers Staff The location is within a commercial area A Class A landscape buffer , along with the special use conditions required by the Boards , will maintain the value of contiguous properties 4 That the use or development conforms with general plans for the physical development of the County’s Planning jurisdiction , the Design Manual , or other development policies as adopted by the Board of Commissioners Applicant Our site conforms to the general plans as it is a retail location in an existing shopping center that maintains enforcement of the existing codes PagePage pageNumber5769 March 5 , 2012 – 6 00 pm Continued Staff Applicant’s proposed development will conform to all requirements of the Land Development Code and any conditions as required by the Boards and Federal , State and Local agencies Specific Land Uses APPLICANT Internet Café Internet Sweepstakes Gaming in addition to the permitted uses in General Business and Interstate Highway Interchange Districts Special Use Conditions 1 Permitted Uses To allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in General Business and Interstate Highway Interchange Districts 2 The Special Use Permit shall expire with the violation of any Special Use Condition 3 Subject to all laws as established by the State of North Carolina for the operation of an electronic gaming facility , the use of electronic games , and or similar facility use 4 The number of internet gaming terminals shall be limited to 35 based on the applicants request and the parking requirements 5 Parking requirements a Parking shall be calculated as Retail Office area for the commercial shopping center based on the Design Manual requirements , plus b 15 space per 2 internet gaming terminal 6 All signage shall comply with the sign code 7 A Class A landscape buffer 1 large trees , 2 small trees and 6 shrubs every one hundred 100 linear feet has already been established , and shall be maintained 8 Lighting shall be dark sky and engineered so as not to shine onto adjacent properties Mr Gray listed and reviewed each of the special use conditions with the Board Mr Gray stated staff has evaluated the parking at the shopping center and has determined there is adequate parking available for the number of gaming terminals requested ; therefore , parking is not a concern Commissioner Tony Braswell noted there were no conditions related to the hours of operation Mr Gray reported the Food Lion and most of the other businesses within the shopping center are already operating 24 hours per day Commissioner Jeffrey P Carver stated that in the Planning Board minutes , there was discussion on how many internet café businesses should be allowed and he asked for more information Commissioner DeVan Barbour stated the Planning Board discussion had more to do with density in general because of the amount of parking that is required for such businesses Mr Gray explained that the Planning Board recommended staff to draft possible ordinance language with regards to density to be forwarded to the Commissioners for their review Chairman Allen L Mims , Jr , asked the applicant if he understood and agreed with the proposed special use conditions Applicant Parkash Patel , 2908 US Hwy 301 , Wilson , confirmed that he agrees with the proposed special use conditions Mr Patel stated even though he is not busy all the time , he plans to operate 24 hours a day in order to be competitive He noted at the Goldsboro business , the hours of operation are limited , which is acceptable because all internet cafes must conform to the same hours for fair competition He reported their busiest times are right after lunch and again from 6 00 pm until 10 00 pm Mr Patel stated a lot of retired people and groups come in to play penny games , drink coffee , and socialize Mr Gray reported the Planning Board recommended approval There being no further comments , the Chairman closed the Special Use Hearing for Case 12 - 01 Decision on Special Use Case 12 - 01 Case 12 - 01 To allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in the General Business and Interstate Highway Interchange Districts Owner Swift Creek Improvements LLC Applicant X - Tech Internet Café Parkash Patel Based on the findings of facts and special use conditions , Commissioner Cookie Pope moved the Board authorize the Planning Department to issue a special use permit for Case 12 - 01 to allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in the General BusinessPagePage pageNumber6770 March 5 , 2012 – 6 00 pm Continued and Interstate Highway Interchange Districts on 006 acres of a 65 acre tract located at 79 Glen Road in Cleveland Township Commissioner W Ray Woodall seconded the motion , which carried by unanimous vote Findings of Fact for the Special Use Permit The Board of Commissioners adopts the findings of facts as set in Staff’s recommendation in the above summary of evidence , as its own Special Use Conditions 1 Permitted Uses To allow for the operation of an Internet Café Internet Sweepstakes Gaming Business in addition to the permitted uses in General Business and Interstate Highway Interchange Districts 2 The Special Use Permit shall expire with the violation of any Special Use Condition 3 Subject to all laws as established by the State of North Carolina for the operation of an electronic gaming facility , the use of electronic games , and or similar facility use 4 The number of internet gaming terminals shall be limited to 35 based on the applicants request and the parking requirements 5 Parking requirements a Parking shall be calculated as Retail Office area for the commercial shopping center based on the Design Manual requirements , plus b 15 space per 2 internet gaming terminal 6 All signage shall comply with the sign code 7 A Class A landscape buffer 1 large trees , 2 small trees and 6 shrubs every one hundred 100 linear feet has already been established , and shall be maintained 8 Lighting shall be dark sky and engineered so as not to shine onto adjacent properties 5 Manager Reports and Comments A Princeton and Clayton EMS Units County Manager Rick Hester asked the Board to formally accept the management and operation of the Princeton and Clayton EMS Units effective July 1 , 2012 , and to further approve the associated new personnel positions to staff the units Upon a question by Commissioner Jeffrey P Carver , Mr Hester indicated that staff is working on all the documentation that will be needed in order to assume the management on July 1 , 2012 Commissioner Tony Braswell asked if transition teams would be available Mr Hester reported the County already has someone at Clayton ; however , at present , he did not believe that a staff member is currently stationed at Princeton every day Chairman Allen L Mims , Jr commented that the County’s Human Resources staff would begin visiting the EMS Units in that it is anticipated most of the Clayton and Princeton EMS personnel would be hired by the County to staff the units and Human Resources will begin the interview process very soon in order to be ready on July 1 , 2012 At the inquiry of Commissioner Wade M Stewart , Mr Hester confirmed that he would like for the Board to formally take action regarding the County’s intent to assume the management and operation of the Clayton and Princeton EMS Units effective July 1 , 2012 Chairman Mims commented that the County has been contracting with EMS units over the years ; however , he reminded everyone that ultimately it is the County’s mandate to address emergency services for the citizens Upon a motion by Commissioner Cookie Pope , seconded by Commissioner W Ray Woodall , and carried by unanimous vote , the Board voted to accept the management and operation of the Princeton and Clayton EMS Units , effective July 1 , 2012 and further approved the associated new personnel positions to staff the units Commissioner DeVan Barbour commented that the July 1 , 2012 effective date also corresponds with the current contract expirations for the two units PagePage pageNumber7771 March 5 , 2012 – 6 00 pm Continued 6 Board Reports and Comments A Agenda for the 2012 Annual Work Session Commissioner Tony Braswell noted the agenda for the 2012 annual work session , being held on April 2 , 2012 at 6 00 pm in the Board of Commissioners meeting room , will be drafted soon County Manager Rick Hester stated staff would begin working on a draft agenda B Recognition of District 2 County Commissioner Candidate Ted Godwin Chairman Allen L Mims , Jr recognized County Commissioner Candidate Ted Godwin who has filed for election in Commissioner District 2 Chairman Mims noted that Mr Godwin has no opposition since Commissioner W Ray Woodall has decided not to run for re - election The Board congratulated Mr Godwin on his upcoming term as a new Johnston County Commissioner C Sheriff Steve Bizzell – Comments Regarding Oak Ridge Subdivision At the inquiry of Commissioner Wade M Stewart , Sheriff Steve Bizzell reported that regarding the Public Comment item concerning the discharge of firearms in Oak Ridge Subdivision , the investigation is still ongoing and he will share information with the Board at the appropriate time Sheriff Bizzell stated that overall , the current firearms ordinance is working and he noted that most of the complaints received are from residents in subdivisions There being no further business , Commissioner Cookie Pope moved the Board adjourn Commissioner Tony Braswell seconded the motion , which carried by unanimous vote The meeting adjourned at 7 00 pm Allen L Mims , Jr , Chairman Paula G Woodard , Clerk to the BoardPage