August 3, 2015 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 750 Meeting of the Johnston County Board of Commissioners August 3 , 2015 6 00 pm The Johnston County Board of Commissioners met in regular session Monday , August 3 , 2015 at 6 00 pm in the Commissioners Meeting Room , Johnston County Courthouse Annex , Smithfield , North Carolina The following members were present Present Chairman Tony Braswell , Cookie Pope , Allen L Mims , Jr , Jeffrey P Carver , Ted G Godwin , and Chad M Stewart Absent Vice Chairman DeVan Barbour Also Present County Manager Rick J Hester , Clerk to the Board Paula G Woodard , County Attorney Jennifer J Slusser , and Paralegal Deputy Clerk to the Board Dana Cuddington Chairman Tony Braswell called the meeting to order at 6 00 pm and the following business was transacted 1 Public Comment None 2 Public Hearing Rezoning and Special Use Requests Advertised – The Smithfield Herald – July 22 and 29 , 2015 Certified letters were mailed to adjoining property owners on July 20 , 2015 Notices were posted at the locations on June 2 , 2015 for Cases 15 - 23 and 15 - 24 The Chairman opened the Rezoning Hearing for Case 15 - 23 Case 15 - 23 Petition to rezone a 137 acre tract located at 4606 US 70 Hwy in Boon Hill Township from General Business GB to Agricultural Residential AR Tax ID 04N11193C Owner Jennifer and Joel Desjardin Applicant Jennifer Desjardin Planning Director Berry Gray stated the petition is to rezone a 137 acre tract located at 4606 US 70 Hwy in Boon Hill Township from General Business to Agricultural Residential Mr Gray reported the owner applicant is currently serving in the military and has been transferred to California during the process of trying to sell the property He stated the applicant reported at the Planning Board meeting that she may not be here for the Commissioners meeting due to her transfer and she would like for the Board of Commissioners to proceed with rezoning the property in her absence Commissioner Allen L Mims , Jr noted the Board has the authority to hear the request in the absence of the applicant since it is a downzoning and there is no special use petition associated with the rezoning request Chairman Tony Braswell agreed with Commissioner Mims and asked for Mr Gray to continue Mr Gray stated the existing use is zoned General Business but used for a residence which is why the applicant is requesting the downzoning He stated the subject site was originally zoned General Business as part of the US Hwy 70 overlay The surrounding land uses are zoned Agricultural Residential and used for agricultural and residential as well as General Business and used for agricultural and residential purposes 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 Chairman Braswell disclosed that his personal firm had the property listed at one time ; however , the property is now under a different realtor so there is no conflict of interest Chairman Braswell also noted his concern is that the realtor could possibly sell the property as commercial , then the new buyer finds out the property has been downzoned Commissioner Mims commented that the surrounding uses are all residences and he would rather see the property zoned for residential to be consistent with those uses Commissioner Cookie Pope stated no one spoke in opposition at the Planning Board meeting according to the Planning Board meeting minutes Page751 August 3 , 2015 – 6 00 pm Continued There being no further public comments , the Chairman closed the public comment portion of the hearing Mr Gray reported the Planning Board recommended approval of the rezoning and adoption of a Resolution for the Statement of Consistency as submitted in the agenda packet There being no further comments , the Chairman recessed the Rezoning Hearing for Case 15 - 23 Decision on Rezoning Case 15 - 23 Case 15 - 23 Petition to rezone a 137 acre tract located at 4606 US 70 Hwy in Boon Hill Township from General Business GB to Agricultural Residential AR Tax ID 04N11193C Owner Jennifer and Joel Desjardin Applicant Jennifer Desjardin Commissioner Ted G Godwin moved the Board adopt the following Statement of Consistency Resolution for Case 15 - 23 Commissioner Cookie Pope seconded the motion , which carried by unanimous vote RESOLUTION FOR CASE NUMBER 15 - 23 RESOLUTION ADOPTING A STATEMENT OF CONSISTENCY REGARDING A PROPOSED ORDINANCE AMENDING THE OFFICIAL ZONING MAPS OF JOHNSTON COUNTY WHEREAS , pursuant to NC Gen Stat § 153A - 341 , prior to adopting or rejecting a zoning amendment , the governing board is required to adopt a statement as to whether the amendment is consistent with the comprehensive zoning plan and why the board considers the action taken to be reasonable and in the public interest ; WHEREAS , the County Planning Board has reviewed a proposed amendment to The Official Zoning Maps of Johnston County , for the parcel identified as tax Tag ID 04N11193C located at 4606 US 70 as shown on the attached Exhibit A , from General Business GB to Agricultural Residential AR WHEREAS , based on a review of the proposed amendment the Planning Board found that the proposed amendment is consistent with the Johnston County Comprehensive Land Use Plan and updates and further recommended that the Board of Commissioners approve the proposed amendment ; and WHEREAS , this Board has reviewed and considered the above written recommendation of the Planning Board and has held a public hearing on the proposed amendment , and this Board desires to adopt a statement describing why the adoption of the proposed amendment is consistent with the Johnston County Comprehensive Land Use Plan and updates and the Board considers the proposed amendment to be reasonable and in the public interest NOW , THEREFORE , BE IT ORDAINED BY THE JOHNSTON COUNTY BOARD OF COMMISSIONERS THAT 1 This Board finds and determines that the adoption of the proposed amendment to the Official Zoning Maps of Johnston County is consistent with the Johnston County Land Use Plan and updates thereto because the Land Use Plan and updates indicate that a The amendment is consistent in that it aligns with “ Goal 9 Preserve the Rural Landscape ” found in the Comprehensive Land Use Plan 2 This Board finds and determines that it is reasonable and in the public interest to adopt the proposed amendment because a AR zoning is compatible with surrounding land uses rd Adopted this the 3 day of August , 2015 Commissioner Ted G Godwin moved the Board approve Rezoning Case 15 - 23 to rezone a 137 acre tract located at 4606 US 70 Hwy in Boon Hill Township from General Business to Agricultural Residential Commissioner Cookie Pope seconded the motion , which carried by unanimous vote It was determined the applicant for Rezoning Case 15 - 24 was not present It was the consensus of the Board to hear the Code of Ordinances Amendment Public Hearing next to allow the applicant more time to arrive 3 Public Hearing – Code of Ordinances Amendment – Solar Utility Facilities Advertised – The Smithfield Herald – July 22 and 29 , 2015 The Chairman opened the public hearing to receive public comment and discussion on a proposed amendment to the Johnston County Code of Ordinances Chapter 14 – Land Development Code , as it relates to solar utility facilities Page752 August 3 , 2015 – 6 00 pm Continued Planning Director Berry Gray introduced the following proposed amendment to the Board that was recommended for approval by the Planning Board Sec 14 - 123 - Solar and wind energy systems — As a utility facility a The provisions of this section shall be applicable to sections 14 - 83 Industrial - 2 b Solar and Wind Energy Generation Facilities shall require a Special Use Permit in this district c Solar energy generation facilities 1 Solar mounting devices shall be set back at least 20 150 feet from all property lines 2 Solar mounting devices shall be limited to no more than 40 12 feet in height 3 Ground - mounted equipment and accessory structures shall be set back at least 20 150 feet from all property lines 4 Site shall be enclosed by a 6 ’ fence topped with barbwire 5 Site will be enclosed by a landscape buffer consisting of 10 large evergreen trees and 10 evergreen shrubs every 100 linear feet Existing vegetation may be used if equal or more intense a Evergreen trees shall be at least 4 ’ high at planting Adjacent to all residential dwellings , trees shall be planted at a minimum of 6 ’ tall at grade or a minimum of 4 ’ tall on top of a minimum 2 ’ tall berm b Additional landscaping may be required depending on the intensity of adjacent residential uses 6 Site will be decommissioned within 180 days of a determination by the Zoning Administrator that the facility is no longer being operated , maintained , or used in an operable state of repair 7 The Applicant and the owner of record of any proposed solar utility facilities site shall , at its cost and expense , be jointly required to submit funds to the County to be held in escrow in an amount sufficient to pay for decommissioning the site and with such sureties as are deemed sufficient by the county to assure the faithful performance of the terms and conditions of this section and conditions of any special use permit issued pursuant to this section The full amount shall be held by the County throughout the term of the special use permit and or until any necessary site restoration is completed to restore the site to a condition comparable to that , which existed prior to the issuance of the original special use permit a Amount to be held in escrow shall be determined by an estimate provided by a certified engineer at the expense of the owner and applicant and shall include the cost of the removal of solar collectors , cabling , electrical components , and any other associated facilities Mr Gray explained that several years ago staff put together an amendment to the ordinance regarding solar energy systems He stated at that time , the County did not have any solar facilities and the ordinance that was adopted was based on the limited information that was available Mr Gray continued that since that time , the County has seen a number of solar facilities locate here and staff along with the Planning Board felt the ordinance needed some adjustments based on concerns from residents as well as the actual equipment being used by the solar companies Mr Gray stated the proposed amendment would change the setback from 20 feet to 150 feet from all property lines and limit the height of the solar devices to no more than 12 feet He stated the amendment would add language that the site shall be enclosed by a 6 ’ fence topped with barbwire , which the solar companies are already doing Mr Gray explained in an effort to help with visibility , the amendment would add language that the site shall be enclosed with a landscape buffer and he outlined the proposed requirements of that buffer Mr Gray stated staff proposed and the Planning Board recommended adding language requiring the applicant and the owner of record to submit funds to the County to be held in escrow in an amount sufficient to pay for decommissioning the site He stated the language calls for the amount held in escrow to be determined by an estimate provided by a certified engineer at the expense of the owner and applicant Mr Gray explained the language is proposed because there has been a lot of discussion recently as to what happens to a site after the solar operation’s life ends Mr Gray stated staff looked at bonds and Letters of Credit , but those would be difficult for staff to monitor 20 years out Mr Gray stated if funds are held in escrow then once the solar operation is no longer in use , if the owner or applicant does not remove the equipment then the funds would be in place for the County to decommission the site if need be Mr Gray offered to answer any questions Commissioner Ted G Godwin stated language needed to be added that if the equipment is removed by the owner or applicant once the site is decommissioned , then those funds will be released back to the owner applicant Commissioner Allen L Mims , Jr asked if the solar company could get some type of insurance or bond where they pay a premium with the County being the beneficiary rather than putting money in escrow Chairman Tony Braswell commented it would be extremely difficult to find an insurance company to offer an insurance bond out as far as 20 years He stated typical bonds are for a year or two at the most Page753 August 3 , 2015 – 6 00 pm Continued Commissioner Chad M Stewart questioned if the landowner or the solar company would be required to put up cash in escrow Commissioner Stewart stated if the property is leased to the solar company then it would ultimately fall to the landowner to make sure the property does not become a nuisance Commissioner Stewart asked how the enforcement process works Mr Gray provided an example of the enforcement process by stating in one other case involving a junkyard , the County actually took the enforcement process to the limit and ended up having to go on site and clean up the property He stated once the site was cleaned up , the County then put a tax lien on the property Commissioner Jeffrey P Carver stated he would like to know how much it would cost to dismantle a solar operation on a per acre basis Commissioner Stewart stated it would be difficult to determine what that cost would be 20 years from now Commissioner Carver explained that a value of the land must be determined once the solar equipment has been removed because if the County were to clean up the site and place a tax lien on the property , it is possible the tax lien could be more than the actual value of the property Commissioner Mims commented that one of the past solar facility applicants reported they would want to remove that equipment because of the salvage value Commissioner Mims stated the issue is that the Board does not know what that salvage value will be 20 years from now Commissioner Cookie Pope commented that another issue is the Board does not know what kind of financial condition the solar company may be in 20 years from now noting they could declare bankruptcy Commissioner Godwin asked if an engineer could come up with a cost taking into account future salvage values , among other things Commissioner Carver spoke on the difficulties of determining future values noting a lot depends on the market at the time Commissioner Mims asked Mr Gray if any of the solar utility companies had commented on the proposed amendment Mr Gray stated the solar companies that staff spoke with did have concerns with the language regarding the cash to be held in escrow The Board continued to discuss how the ordinance amendment could be adopted when the Board does not have an idea as to the value associated with decommissioning the sites and how such a value could be determined David Turnage , 50 Turnage Road , Smithfield , stated he believes the Board is headed in the right direction with the proposed amendment Mr Turnage continued that whatever the Board does it must be something that will stick Mr Turnage voiced his support for the increased setbacks noting visibility is one of the main concerns Mr Turnage spoke on the need for good screening between the use and the neighboring property owners Commissioner Stewart agreed that the biggest complaint he hears concerns the visibility At the inquiry of Chairman Braswell , Mr Gray reported the Planning Board recommended approval of the proposed amendment Mr Gray stated he realizes there are a lot of questions regarding the language concerning the escrow money and if the Board decides to delete that language , staff will still have the ability to use zoning enforcement procedures to get the sites cleaned up Commissioner Mims asked how difficult would the zoning enforcement process be concerning the cleanup of the sites County Attorney Jennifer Slusser stated the enforcement process from a legal perspective is not difficult ; however , the concern is that the County does not have adequate funds set aside to clean up a site if the applicant or property owner refuses Ms Slusser stated the courts can order the property owner to clean up the site , but still not get compliance from the property owner in which case the property owner could be held in contemptPagePage pageNumber5754 August 3 , 2015 – 6 00 pm Continued which still does not fix the problem She stated at that point , the problem is fixed when the County cleans up the property and establishes a tax lien Commissioner Stewart asked how expensive the enforcement process is Ms Slusser stated the legal process of enforcement is not expensive and would consist of court costs only for the County She stated the expensive part for the County would be the expense associated with getting a remediation expert on the site to clean it up Ms Slusser noted some counties have funds set up for problem property remediation ; however , Johnston County does not currently have such a fund Commissioner Mims stated his concern is if the operation is a lease arrangement and the solar company refuses to clean up the site , then it becomes a burden to the property owner who may not have understood that when they signed the lease agreement Commissioner Godwin noted the public hearing was duly advertised and only one person came to speak on the proposed amendments Commissioner Godwin stated he is in favor of going forward with what staff has suggested and the Planning Board has recommended and then if there are problems down the road , those problems can be addressed at such time Chairman Braswell stated another concern is there are some instances where the property owners are folks that are choosing to enter into an agreement with the solar companies because they need the income to live on and they would rather see a solar farm on the site than a subdivision or other industrial use Chairman Braswell asked if the amendment would shut the door on such opportunities for property owners that need the income a solar operation would bring them Commissioner Carver asked if there was some kind of legal guarantee that the solar company could be required to agree to regarding the cleanup of the property Ms Slusser stated some type of guarantee could be considered ; however , she cautioned the guarantee is only as good as the company that is backing it up Commissioner Godwin stated until the Board knows how much it would cost to dismantle the equipment and clean up the site they are shooting in the dark Commissioner Stewart stated a future cost to dismantle a site is going to be hard to determine Chairman Braswell stated some kind of cost information is needed before the Board can move forward and asked if the public hearing could be held open Ms Slusser advised the Board could recess the hearing until a date certain Public Hearing Recessed Commissioner Ted G Godwin moved the Board recess the public hearing until the September 1 , 2015 6 00 pm meeting to allow staff time to gather additional information concerning the costs associated with dismantling a solar operation Commissioner Jeffrey P Carver seconded the motion which carried by unanimous vote 4 Public Hearing Rezoning and Special Use Requests Continued It was determined that the applicant for Rezoning Case 15 - 24 had not arrived to the meeting Chairman Tony Braswell noted the case was for a downzoning and stated if there were no objections from the Commissioners he would proceed with the public hearing for Case 15 - 24 There being no objections from the Commissioners , the Chairman reopened the Rezoning Hearing for Case 15 - 24 Case 15 - 24 Petition to rezone 10 acres out of an 1814 acre tract located at 650 Polenta Rd in Cleveland Township from Agricultural Residential – Special Use District AR - SUD to Agricultural Residential AR Tax ID 06F04199F Owner Polenta Investments , LLC Applicant Jim AustinPagePage pageNumber6755 August 3 , 2015 – 6 00 pm Continued Planning Director Berry Gray stated the petition is to rezone 10 acres out of an 1814 acre tract located at 650 Polenta Road in Cleveland Township from Agricultural Residential – Special Use District to Agricultural Residential Mr Gray stated the site was zoned Agricultural Residential – Special Use District to allow for an outdoor recreation facility known as the Pop Warner Fields and the applicant now wishes to develop a subdivision He noted the Planning Board approved the subdivision pending the Board of Commissioners ’ decision on the rezoning petition The surrounding land uses are zoned Agricultural Residential and used for agricultural and residential purposes 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 There being no further public comments , the Chairman closed the public comment portion of the hearing Mr Gray reported the Planning Board recommended approval of the rezoning and adoption of a Resolution for the Statement of Consistency as submitted in the agenda packet There being no further comments , the Chairman closed the Rezoning Hearing for Case 15 - 24 Decision on Rezoning Case 15 - 24 Case 15 - 24 Petition to rezone 10 acres out of an 1814 acre tract located at 650 Polenta Rd in Cleveland Township from Agricultural Residential – Special Use District AR - SUD to Agricultural Residential AR Tax ID 06F04199F Owner Polenta Investments , LLC Applicant Jim Austin Commissioner Cookie Pope moved the Board adopt the following Statement of Consistency Resolution for Case 15 - 24 Commissioner Chad M Stewart seconded the motion , which carried by unanimous vote RESOLUTION FOR CASE NUMBER 15 - 24 RESOLUTION ADOPTING A STATEMENT OF CONSISTENCY REGARDING A PROPOSED ORDINANCE AMENDING THE OFFICIAL ZONING MAPS OF JOHNSTON COUNTY WHEREAS , pursuant to NC Gen Stat § 153A - 341 , prior to adopting or rejecting a zoning amendment , the governing board is required to adopt a statement as to whether the amendment is consistent with the comprehensive zoning plan and why the board considers the action taken to be reasonable and in the public interest ; WHEREAS , the County Planning Board has reviewed a proposed amendment to The Official Zoning Maps of Johnston County , for the parcel identified as tax Tag ID 06F04199F located at 650 Polenta Road as shown on the attached Exhibit A , from Agricultural Residential Special Use AR - SUD to Agricultural Residential AR WHEREAS , based on a review of the proposed amendment the Planning Board found that the proposed amendment is consistent with the Johnston County Comprehensive Land Use Plan and updates and further recommended that the Board of Commissioners approve the proposed amendment ; and WHEREAS , this Board has reviewed and considered the above written recommendation of the Planning Board and has held a public hearing on the proposed amendment , and this Board desires to adopt a statement describing why the adoption of the proposed amendment is consistent with the Johnston County Comprehensive Land Use Plan and updates and the Board considers the proposed amendment to be reasonable and in the public interest NOW , THEREFORE , BE IT ORDAINED BY THE JOHNSTON COUNTY BOARD OF COMMISSIONERS THAT 1 This Board finds and determines that the adoption of the proposed amendment to the Official Zoning Maps of Johnston County is consistent with the Johnston County Land Use Plan and updates thereto because the Land Use Plan and updates indicate that a The amendment is consistent in that it aligns with “ Goal 9 Preserve the Rural Landscape ” found in the Comprehensive Land Use Plan 2 This Board finds and determines that it is reasonable and in the public interest to adopt the proposed amendment because a AR zoning is compatible with surrounding land uses rd Adopted this the 3 day of August , 2015 Commissioner Cookie Pope moved the Board approve Rezoning Case 15 - 24 to rezone 10 acres out of an 1814 acre tract located at 650 Polenta Road in Cleveland Township from Agricultural Residential – Special UsePagePage pageNumber7756 August 3 , 2015 – 6 00 pm Continued District to Agricultural Residential Commissioner Chad M Stewart seconded the motion , which carried by unanimous vote 5 Manager Reports and Comments A Drivers Education Funding County Manager Rick Hester stated that regarding Commissioner Cookie Pope’s request from the 10 00 am meeting concerning the Board possibly adopting a resolution requesting the General Assembly to continue funding for Drivers Education , he has contacted Johnston County Schools Superintendent Dr Ed Croom for more information Mr Hester stated he would like to get more information from Dr Croom on the issue and then perhaps the Chairman could send a letter to the Legislative Delegation on behalf of the Board of Commissioners concerning the matter It was the consensus of the Board for the County Manager to get more information from Dr Croom and for the Chairman to send a letter to the Legislative Delegation on behalf of the Board when appropriate 6 Board Reports and Comments A Solar Utility Facilities Ordinance Amendment – Continued Discussion Upon questions by Commissioner Allen L Mims , Jr , the Board briefly discussed the solar utility facilities ordinance amendment , in particular the proposed amendment language that would require the submittal of funds to be held in escrow sufficient to pay for decommissioning the site once it is no longer in operation Following discussion , it was the consensus of the Board for staff to consult with an engineering firm to try and determine an estimated cost for decommissioning solar utility facility sites at today’s costs as well as if a projected future cost could be determined and recycling salvage values B Request from Angie West Commissioner Ted G Godwin noted the Board received a request from Ms Angie West , who is the sister of the late Paul West Commissioner Godwin stated as the letter explains , Paul West was a Deputy with the Johnston County Sheriff’s Office who was killed in the line of duty in 1995 Commissioner Godwin continued that Ms West is asking for the Board to honor the memory of Paul West with the naming of a bridge somewhere in the County Commissioner Godwin stated he did not personally know Mr West ; however , he is aware of what happened when Mr West was killed and he feels the Board should look into the request by Angie West Commissioner Godwin stated the Board recently sent a letter in support of the Wayne County Board of Commissioners ’ request to reserve a section of the western portion of the new US Hwy 70 Goldsboro Bypass to be named for William Grey Bailey and he feels the Board should also look into doing something for Paul West Commissioner Chad M Stewart stated he personally knew Paul West and that Mr West was as fine of a person as you could ever meet Commissioner Jeffrey P Carver commented that he also was familiar with the West Family and he agreed that the Board should look into doing something to honor Mr West’s memory C 70 Corridor Commission – 70 Corridor Projects Construction Chairman Tony Braswell reported he has been contacted recently by a number of farmers in his area that use the Pine Level interchange to cross over to US 70 Business in order to transport their tobacco and how they must now follow a detour route since that connection has been closed due to the 70 Corridor construction project Chairman Braswell asked Commissioner Ted G Godwin since he is the Chairman of the Hwy 70 Corridor Commission to see if there is some way a temporary access could be opened at the Peedin Road Extension for those farmers to transport their crops Chairman Braswell stated the issue would not have been as bad if the Firetower Road connection had not been closed at the same time Commissioner Godwin stated he would look into the matter PagePage pageNumber8757 August 3 , 2015 – 6 00 pm Continued There being no further business , Commissioner Jeffrey P Carver moved the Board adjourn Commissioner Cookie Pope seconded the motion , which carried by unanimous vote The meeting adjourned at 6 50 pm Tony Braswell , Chairman Paula G Woodard , Clerk to the BoardPage