March 1, 2010 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 711 Meeting of the Johnston County Board of Commissioners March 1 , 2010 6 00 pm The Johnston County Board of Commissioners met in regular session Monday , March 1 , 2010 at 6 00 pm in the Commissioners Meeting Room , Johnston County Courthouse Annex , Smithfield , North Carolina The following members were present Present Wade M Stewart , Chairman , Allen L Mims , Jr , Vice Chairman , Cookie Pope , Jeffrey P Carver , W Ray Woodall , DeVan Barbour , and Tony Braswell Absent None Also Present Rick J Hester , County Manager , Paula G Woodard , Clerk to the Board , David Mills , County Attorney , and Melissa A Daughtry , Paralegal Deputy Clerk Chairman Wade M Stewart called the meeting to order at 6 00 pm and the following business was transacted 1 Public Comments A Recognition of Boy Scouts in Attendance Chairman Wade M Stewart recognized members of Boy Scout Troop 21 in the audience and asked them to come forward and lead everyone in the Pledge of Allegiance to the American Flag Following the pledge , each Troop member introduced themselves and Scout Master Jeff Detig along with Assistant Scout Master Greg Idle noted that the Troop was attending the meeting to earn a Citizenship in Community Merit Badge He stated the Troop would be observing the meeting and discussing one of the rezoning cases to learn more about County Government The Board wished the young men well on their future endeavors 2 Public Hearing Rezoning and Special Use Requests Advertised – In The Smithfield Herald – February 17 and 24 , 2010 Certified letters were mailed to adjoining property owners on February 15 , 2010 Notices were posted at the locations on January 4 , 2010 for Cases 07 - 15 , 07 - 30 , 09 - 24 , 09 - 25 , 09 - 26 , and 09 - 27 The Chairman opened the Special Use Hearing for Case 07 - 15 Case 07 - 15 To allow for the operation of a convenience store on a 298 acre tract located at the intersection of Old Drug Store Road and NC Hwy 50 in Cleveland Township zoned General Business - Special Use District GB - SUD Tax ID 06D02003 Owner Son - Lan Development Co Inc Applicant Derek Coryea Those wishing to speak on Special Use Case 07 - 15 were sworn in by the Clerk to the Board Planning Director Berry Gray introduced the special use case and stated the request to allow for the operation of a convenience store on a 298 acre tract located at the intersection of Old Drug Store Road and NC Hwy 50 in Cleveland Township zoned General Business - Special Use District Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 07 - 15 on December 1 , 2009 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 Page712 March 1 , 2010 – 6 00 pm Continued • 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 19 , 2010 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 07 - 15 and made the following recommendations Upon a motion by Mr Gathers to approve the Special Use Modification as presented , seconded by Mr Smith and carried by a vote of unanimous vote of 8 - 0 , the Planning Board recommended approval of the Special Use Conditions for Case 07 - th 15 at the January 19 , 2010 Planning Board Meeting 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 Site is located at the intersection of NC Hwy 50 and SR 1524 , Old Drug Store Road Site to be developed to enhance the area and to be aesthetically pleasing Staff 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 Development will meet or exceed current land use development regulations Staff The intended use shall comply 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 Development will enhance the value of adjoining properties due to the lack of commercial retail businesses in the area Staff Installation of a Class B landscape buffer and 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 Development will meet or succeed the County’s general plans and development guidelines 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 Convenience Store Special Use Conditions 1 Permitted Uses Convenience Store 2 The Special Use Permit shall expire with the violation of any Special Use Condition 3 Applicant shall submit a detailed site plan for review and approval by the Planning and Zoning Department Staff 4 Hours of operation shall be 6 00 am to 12 00 am , Monday through Sunday 5 All signage shall comply with the sign code 6 A Class B landscape buffer 2 large trees , 3 small trees and 9 shrubs every one hundred 100 linear feet shall be installed along all commercial lines , unless existing vegetation is equivalent 7 All buildings and or structures must comply with rules enforced by the following departments and or agencies Johnston County Building Inspections , Public Utilities , Environmental Health , NC Department of Transportation 8 Lighting shall be dark sky and engineered so as not to shine onto adjacent properties 9 Dedicate right - of - way for Old Drug Store Road realignment 10 All utilities within the abandoned right - of - way shall be relocated into the new alignment or placed within a permanent utility easement 11 Driveway along NC Hwy 50 shall be limited to a right - in and right - out only Mr Gray informed the Board that the rezoning to General Business – Special Use District occurred in 2007 and at the time of approval , the applicant had two years from the date of approval to petition for the corresponding special use permit He explained that recently enacted legislation , due to the current state of the economy , now allows for the rezoning to remain in place beyond two years ; therefore the rezoning is still valid Mr Gray stated the request would allow for the operation of a convenience store with full service access onto Old Drug Store Road with a right - in right - out only on NC Hwy 50 Mr Gray noted that part of the property is within the 100 year flood plain ; however , the section of land proposed for construction is outside of the flood plain Mr Gray listed and reviewed the special use conditions with the Board Commissioner Allen L Mims , Jr pointed out the site plan and asked how the dumpster area would be accessed as well as how the right - of - way was divided between the property owners when the old right - of - way was abandoned due to the recent road realignment Page713 March 1 , 2010 – 6 00 pm Continued Mr Gray reported a small portion of the old right - of - way that ran directly through part of the subject site reverted back to the property owner Son - Lan after the realignment He noted the property owner to the south of the subject site did receive a small portion of the abandoned right - of - way after the realignment Mr Gray stated the dumpster site is located directly adjacent to the proposed location of the gas pumps , which would be accessed directly from the right - in right - out on NC Hwy 50 At the inquiry of Chairman Wade M Stewart , Mr Gray confirmed that two access points are planned ; a right - in right - out on NC Hwy 50 for north bound traffic as well as an access point on the new Old Drug Store Road Upon a question by Commissioner Mims , Mr Gray stated the applicant has agreed to the proposed hours of operation in the special conditions based on previous discussions ; however , he noted the applicant may request a change from the Board of Commissioners Applicant Derek Coryea offered to answer any questions by the Board Mr Coryea reported he would construct , own , and most likely operate the store , if approved Commissioner Mims commented the Board is aware of concerns by some citizens regarding loud speakers or televisions used at the pumps and asked Mr Coryea if he plans to have similar features Mr Coryea stated that he has no issues with the proposed hours of operation in that fuel deliveries will take place during working hours in order to properly monitor the inventory reports Mr Coryea reported he plans to install an intercom system at the pumps to allow the cashier to communicate with the customer He stated that in the past he has installed music at the pumps and played them during the day ; however , if it is an issue then he has no problems not installing it Commissioner Mims indicated that he has no problems with music being played at the pumps during daylight hours so long as the sound is at a decibel for only the customer to hear it , but he does not want nearby residents to be disturbed by it Commissioner Tony Braswell noted in the minutes from the Planning Board it discusses ethanol and biodiesel pumps and he asked for more information Mr Coryea confirmed that the ethanol and biodiesel pumps would offer an alternative energy source and he noted that grant funding could be available to him for providing such resources Sonny Johnson , 341 Sonny Road , Clayton , Son - Lan Development property owner , addressed the Board and offered to answer any questions Commissioner Cookie Pope pointed out the map in the agenda packet has the original road alignment of Old Drug Store Road and not the new realignment She noted the area looks much better since the realignment has occurred Mr Johnson agreed that the realignment of Old Drug Store Road has improved the area Mr Johnson stated Mr Coryea has constructed other convenience stores in the County and he believed the request , if approved , would enhance the area Mr Gray stated the Planning Board recommended approval There being no further comments , the Chairman recessed the Special Use Hearing for Case 07 - 15 Decision on Special Use Case 07 - 15 Case 07 - 15 To allow for the operation of a convenience store on a 298 acre tract located at the intersection of Old Drug Store Road and NC Hwy 50 in Cleveland Township zoned General Business - Special Use District GB - SUD Tax ID 06D02003 Owner Son - Lan Development Co Inc Applicant Derek Coryea Based on the findings of facts and the special use conditions , Commissioner Cookie Pope moved the Board authorize the Planning Department to issue a special use permit for Case 07 - 15 to allow for the operation of a convenience store on a 298 acre tract located at the intersection of Old Drug Store Road and NC Hwy 50 in Cleveland Township Commissioner W Ray Woodall seconded the motion , which carried by unanimous vote Page714 March 1 , 2010 – 6 00 pm Continued 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 Convenience Store 2 The Special Use Permit shall expire with the violation of any Special Use Condition 3 Applicant shall submit a detailed site plan for review and approval by the Planning and Zoning Department Staff 4 Hours of operation shall be 6 00 am to 12 00 am , Monday through Sunday 5 All signage shall comply with the sign code 6 A Class B landscape buffer 2 large trees , 3 small trees and 9 shrubs every one hundred 100 linear feet shall be installed along all commercial lines , unless existing vegetation is equivalent 7 All buildings and or structures must comply with rules enforced by the following departments and or agencies Johnston County Building Inspections , Public Utilities , Environmental Health , NC Department of Transportation 8 Lighting shall be dark sky and engineered so as not to shine onto adjacent properties 9 Dedicate right – of - way for Old Drug Store Road realignment 10 All utilities within the abandoned right - of - way shall be relocated into the new alignment or placed within a permanent utility easement 11 Driveway along NC Hwy 50 shall be limited to a right - in and right - out only The Chairman reopened the Special Use Hearing for Case 07 - 30 Case 07 - 30 A request to modify the Special Use Permit as follows a commercial subdivision with office , retail , daycare , and other commercial uses Parcel is located at the northeast quadrant of the intersection of Cornwallis Road SR 1525 and NC Hwy 42 W in Cleveland Township Tax ID 05F02021J Owner Cornwallis NC CPDC , LLC Applicant Tony M Tate Landscape Architecture , PA Those wishing to speak on Special Use Case 07 - 30 were sworn in by the Clerk to the Board Planning Director Berry Gray introduced the special use case and stated the request is to modify the special use permit as follows a commercial subdivision with office , retail , daycare , and other commercial uses He stated the parcel is located at the northeast quadrant of the intersection of Cornwallis Road and NC Hwy 42 W in Cleveland Township Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 07 - 30 on December 9 , 2009 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 19 , 2010 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 07 - 30 and made the following recommendations Upon a motion by Mr DeLaine to approve the request as presented , seconded by Mr Letchworth and carried by a unanimous vote of 8 - 0 , the Planning Board recommended approval of the Special Use Modification for Case 07 - 30 at the January 19th , 2010 Planning Board Meeting 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 The site will be developed as a commercial subdivision decreasing the likelihood of a strip shopping center , with a 6 ’ solid wood fence along with landscaping in the buffers providing added protection for the neighboring properties , lighting designed to limit off site glare , and limited hours of trash pick - up to limit noise In addition , full access driveways will be aligned with those across the street and if land is available to construct a sidewalk along Cornwallis Road from the full access drive on Cornwallis to the entrance of the Austin Pond neighborhood PagePage pageNumber5715 March 1 , 2010 – 6 00 pm Continued Staff The development is proposed to be used for commercial purposes and will serve the daily needs of the community by having office , retail and daycare services The design seems very compatible with the neighboring community and includes fencing and landscape buffering to provide privacy to adjacent properties 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 All requirements of the Land Development Code are met with this proposal , including the provision of required parking , increased landscape buffers , setbacks that meet or exceed those required by the code , the required parking lot landscaping , crosswalks within the center to provide for ease and safety or pedestrian travel , parking lot lighting that exceeds the requirements of the code with respect to shielding the neighboring properties from off - site glare , and provisions to manage storm water Additionally , the provisions of the Design Manual with regard to building design and signage will follow Staff This development will comply 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 We envision retail and offices and other related commercial uses to the area residents that will provide their daily and weekly needs without travel to and through that busy intersection will decrease traffic congestion in the I - 40 I - 42 area and provide for the daily needs of the residents within walking or biking distance from their homes A 6 ’ solid wood fence along with the landscaping within the buffers will be utilized to provide additional protection for the neighboring properties , trash pickup will be limited in hours , and driveways providing full access to the development will be aligned with those across the streets to increase safety In addition , this plan creates an additional buffer between the commercial development and residents to the east The decreased intensity in buildings will reduce noise , traffic , and light along the property line This is designed to protect the privacy of the adjoining residences On the abutting property to the north , a 5 acre of trees , about 300 ’ in depth , further provides a buffer between the proposed shopping center and the existing residences Staff As previously stated , the design of this commercial center seems compatible with the neighborhood It is designated as a community commercial center in the Land Use Plan and will serve the daily needs of the community The landscape buffer , sidewalk , fence , as well as all of the special use conditions as required by the Boards will ensure that the value of contiguous properties is maintained 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 The zoning designation of the parcel as General Commercial , indicating the intention of the Board of Commissioners that the parcel be used in a commercial manner In fact , a Special Use District for the shopping center in this location was approved in 2004 and amended in 2008 The need for a Special Use District for the parcel indicates that the Board would like to see the specifics of the planned development in advance of any approval , to ascertain that the needs of the community are met The plan provided with this application shows adherence with the County’s Land Development code through • Landscaping to enhance the appearance of the development and to provide buffering for the adjacent residential uses along the abutting roadways , • Appropriate setbacks and building heights , building heights are decreased from previous proposal , • Storm water provisions to make sure the added development does not cause undue hardships to neighboring properties with regard to storm water runoff , • Efficient internal circulation to provide safe pedestrian , bike and vehicular traffic throughout the site , • Safe and efficient emergency access throughout the site , • Efficient waste removal from all businesses , • Appropriate external connections to abutting roadways that help ensure safe entry and exit from the site , • Building design and siting developed to enhance the surrounding neighborhoods 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 Commercial , office , retail , daycare Special Use Conditions 1 The Special Use Permit shall expire with the violation of any Special Use Condition 2 Submission of a detailed site plan for review and approval by the Planning and Zoning Department Staff 3 Submission of a unified sign plan for review and approval by the Planning and Zoning Department Staff 4 Where applicable all driveways streets shall align with driveways streets on opposing sides of thoroughfares 5 Installation of a 30 ’ Class C Buffer with 150 of required plant material along the west and south property lines Cornwallis Rd & NC Hwy 42 Installation of a 15 ’ Class C Buffer with 100 of the required plant material and a 6 ’ solid wood fence along the north and east property lines 6 All access to outparcels shall be internal ; no driveways to the outparcels on either Cornwallis Rd or NC 42 Number of driveways shall be limited to one two on NC 42 and two on Cornwallis Rd the southernmost driveway on Cornwallis shall be a right - in only , and the western most driveway along NC 42 shall be right - in and right - out only All road improvements shall be done prior to the commencement of building construction 7 Height of buildings to be forty feet maximum PagePage pageNumber6716 March 1 , 2010 – 6 00 pm Continued 8 Lighting shall be dark sky and engineered so as to not shine onto adjacent residential properties Cutoff optics shall be utilized 9 Trash dumpsters may be emptied only during the hours of 7 00 am - 8 00 pm , Monday thru Friday 10 There shall be no billboards or cell towers constructed on this site 11 The existing landscape business located on site must be entirely removed and cleaned up prior to the issuance of the Special Use Permit 12 Must comply with all required NCDOT driveway permitting and all other required traffic improvements 13 The following uses shall be excluded from permissibility on this site a Building material supply , campgrounds , kennels , mini - storage facility , mobile home and RV sales , utilities facility , communication facility , and fast food restaurants with drive - thru 14 Developer shall make every effort to build a walkway sidewalk along Cornwallis Road between the Cornwallis Commons development and entrance to Austin Pond Subdivision provided that there is sufficient right - of - way area to do so 15 All HVAC equipment shall be placed on the roof and screened so as to deflect noise away from the residents at Austin Pond Subdivision 16 A drug store pharmacy or convenience stores are the only type of business that will be permitted to operate 24 hours a day 17 The buffer between the Cornwallis Commons development and Austin Pond Subdivision shall consist of a 6 ’ solid wood fence and natural plantings Planning Department staff shall provide a final approval for the buffer 18 No outdoor live bands or music shall be allowed without prior approval from the County 19 Fence Maintenance Agreement The perimeter landscaping and fencing shall be covered in a maintenance agreement 20 A blanket cross access easement shall cover the property Bold denotes changes additions and strike - through denotes deleted items Mr Gray reported the Board of Commissioners has reviewed various modifications to the permit on several occasions beginning with the original approval in 2004 for Kahn Development for a proposed shopping center that eventually expired He noted the most recent change was in 2009 whereupon the applicant completely revised their plans for the development by removing the proposed grocery store shopping center and replacing it with plans for a commercial subdivision Mr Gray explained the applicant is now requesting a modification to the latest approval from 2009 Mr Gray stated the site plan in the agenda packet is the same plan that was approved in 2009 except for a proposed modification requesting a right - in right - out on NC Hwy 42 in addition to the original full service access on NC Hwy 42 Mr Gray listed and reviewed the special use conditions with the Board , noting that the original conditions approved in 2009 will remain in place along with the proposed modifications , if approved Mr Gray specifically pointed out the modifications to the conditions , as follows • Condition # 5 , the addition of a 6 ’ solid wood fence along the north and east property lines ; • Condition # 6 , the addition of the right - in right - out on NC Hwy 42 ; • Condition # 13 , regarding the uses to be excluded from permissibility on the subject site , the applicant has requested the ability to have a fast food restaurant with no drive - thru ; • Condition # 15 , for the HVAC equipment to be screened so as to deflect the noise away from the residents at Austin Pond Subdivision , rather than placed on the roof ; • Condition # 16 , the addition of a convenience store as a type of business allowed that will be permitted to operate 24 hours a day ; • Condition # 19 , for the perimeter landscaping and fencing to be covered in a maintenance agreement ; and • Condition # 20 , addition of a blanket cross access easement to cover the property Commissioner DeVan Barbour asked for an explanation of cutoff optics for the lighting Mr Gray stated the applicant can provide more details on the cutoff optics , but he noted it was included at the request of the nearby residents and the Planning Board Commissioner Cookie Pope asked who would enforce the landscaping and fence maintenance agreement Mr Gray stated the landscaping and fence maintenance agreement would be handled amongst those who purchase properties within the development to maintain the landscaping and fencing Chairman Wade M Stewart asked what specific uses are planned for the development by the applicant Mr Gray explained that at this point in time , staff has received no applications for specific uses , aside from the main request in the special conditions modification allowing for a convenience store that operates 24PagePage pageNumber7717 March 1 , 2010 – 6 00 pm Continued hours a day He noted at the Planning Board meeting , the applicant did indicate they have received some interest for a 24 hour a day convenience store Mr Gray stated the other main request to the modification is the addition of the second right - in right - out on NC Hwy 42 that would accommodate the convenience store Commissioner Allen L Mims , Jr asked if the proposed convenience store would have gas pumps and was a site plan available showing the proposed location of the gas pumps Mr Gray stated it is his understanding that the convenience store is planned to be full service with gas pumps He reported staff has not received a site plan specifically noting the location of the gas pumps at this time Chairman Stewart asked for Mr Gray to specifically point out the changes the applicant is requesting from what the Board approved in 2009 , noting that was unaware of the proposed modification to allow a 24 hour a day convenience store operation Mr Gray stated the driveway request has changed as well as the applicant is requesting to have a convenience store included in the special condition along with the originally approved pharmacy as the only businesses that can operate 24 hours per day He clarified that the 2008 approval by the Board for a grocery store shopping center did specifically allow for a convenience store operation ; however , when the applicant completely revised the plans and received approval in 2009 for the commercial subdivision , the request was more general in nature , therefore staff felt the need to bring the request back to the Board At the inquiry of Commissioner Mims , Mr Gray confirmed that the final site plan will be reviewed and approved by staff and will not be brought back to the Board of Commissioners He noted just as with all other site plans , staff will review it to make sure it is in compliance with the special conditions established by the Board and then send it to the other appropriate review agencies to ensure that it meets their standards as well Commissioner Mims indicated he would have preferred to have seen the site plan in order to review how the development will fit in with the area He noted the development will significantly change with the addition of gas pumps , noting the convenience store use may cause more traffic Chairman Stewart stated the Board is very concerned about the nearby Austin Pond Subdivision and its residents He noted that until the Board can see a site plan , they do not know how the proposed convenience store will impact Austin Pond Subdivision Mr Gray reiterated that staff has not seen any plans specifically indicating where the convenience store will be located Applicant Tony Tate , Tate Landscape Architecture , PA , representing Cornwallis LLC , stated basically the request before the Board is to allow for the operation of a 24 hour a day convenience store on the subject site He noted a convenience store is already a permitted use within the zoning ; however , they are requesting to operate the convenience store 24 hours a day Mr Tate acknowledged that they have brought the project to the Board on several occasions and have tried to put forth their best efforts to place restrictions on the project to make it better ; however , he noted that it seems as though there are always unforeseen issues arising Mr Tate stated in addition to asking for the convenience store to be allowed to operate 24 hours a day , they are also requesting an additional right - in right - out access on NC Hwy 42 He stated the landscaping easement has been added around the plant material and the fence has been added on the plans Mr Tate asked for the Board to approve the modification request and offered to answer any questions Mr Tate explained that cutoff optics allows lighting to be directional rather than projecting out and spilling over onto adjacent property Commissioner Tony Braswell asked Mr Tate if he could pinpoint the planned location of the proposed convenience store operation on the site plan for the Board Mr Tate stated at this time he could not pinpoint the exact location of the proposed convenience store on the site plan , but he stated that it would be placed on one of the lots along NC Hwy 42 He clarified that currently they do not have a specific contract from any user for any of the lots At the inquiry of Commissioners Barbour and Mims , Mr Tate stated the location of the proposed convenience store would most likely be on one of the three lots along NC Hwy 42 and they are still speculating at this time PagePage pageNumber8718 March 1 , 2010 – 6 00 pm Continued Commissioner Mims asked Mr Tate if sound systems would be used at the proposed gas pumps , recalling his earlier comments in the previous case regarding noise and the impact such sound systems may have on surrounding residents Mr Tate stated noise regulations are covered under the County’s ordinance and they would make sure to pass along the concerns of the Board regarding noise associated with sound systems at gas pumps to anyone who wished to open a store Mike Lusk , 114 St Jiles Drive , Austin Pond Subdivision , addressed the Board regarding his concerns on the permit modification request Mr Lusk referenced a letter previously sent to the Board by his wife , Maria Lusk , from “ The Neighbors of Austin Pond ” dated March 1 , 2010 regarding Case 07 - 30 Mr Lusk stated they have heard rumors of a Sheetz or Sheetz like operation proposed for the subject site Mr Lusk clarified that while he and his family like the Sheetz convenience stores , they are concerned with such an operation being placed on the subject site due to noise and lighting impacts Mr Lusk spoke on his concerns regarding traffic congestion , noting that the last traffic study they are aware of was conducted in 2007 and he questioned if it has been updated He stated his wife has concerns with the style and look of the proposed building facades and would appreciate receiving more information as to what is proposed Mr Lusk expressed his concerns with allowing a Sheetz type operation to locate on the subject site due to the possibility that it may preclude other types of businesses that might have located on the property such as a daycare Mr Lusk stated their concerns are basically the uncertainty of what exactly is planned for the subject site , indicating there has been some confusion He added the residents would like to make sure that whatever locates on the site works in accord with the rest of the area Mr Lusk also stated he would prefer not to have further changes to the special use permit going forward and keep in place what was approved in 2009 Mr Lusk referenced traffic concerns again and stated perhaps a new traffic study is needed ; noting that he would prefer to pinpoint which lot within the subject site would be devoted to a convenience store operation and then require the other surrounding lots to be built out first to act as a buffer to the store Charles McDarris , Attorney with Bailey & Dixon , LLP , 434 Fayetteville Street , Raleigh , representing Charles Bright , owner of the Fiddle - Stix Exxon store located on the southeast corner of NC Hwy 42 and Cornwallis Road Wil - Dor , Inc addressed the Board Mr McDarris stated that his client , Mr Bright , feels blindsided by the request He stated they have been tracking the project since its inception in 2004 and noted that the plans originally proposed a grocery store with retail attached with the plans later changed to offer such uses as daycares , offices , and retail which his client supported Mr McDarris stated the project is now proposed to have a convenience store with gas pumps which is a concern of Mr Bright Mr McDarris stated his client was unaware that a gas station was proposed until the neighbors recently brought it to his attention Mr McDarris reported he reviewed the notices of the special use hearing as well as he referenced the site plan submitted in the agenda packet and stated a convenience store is not listed on the notice or the site plan He stated the notice of the public hearing only states the request is to modify the special use permit as follows a commercial subdivision with office , retail , daycare , and other commercial uses Mr McDarris stated he has asked his client if he could support a convenience store without gas pumps and he reported that Mr Bright has confirmed he would support a convenience store without gas pumps ; however , their concern is that the proposed 24 hour gas station is a substantial deviation from what was planned at the location Mr McDarris reiterated they are not present to oppose the daycare , retail , or office uses ; but they are opposed to a convenience store with 24 hour gas station Mr McDarris referenced the applicant’s special use application with associated documentation and he stated that nowhere does it mention a 24 hour gas station Mr McDarris also referenced documentation submitted by the applicant in the agenda packet titled “ Addendum to Special Use Permit ” and noted in # 3 , the applicant states that the “ decreased intensity in buildings will reduce noise , traffic and light along the property line ” Mr McDarris disagreed with the statement and noted that he believes if a Sheetz or a large commercial 24 hour a day gas station locates on the subject site , it will increase the traffic , noise , and lighting as well as decrease the contiguous property values Mr McDarris also argued that the proposed use is not a public necessity in that there are already approximately eight gas stations within a 2 mile radius of the subject site Mr McDarris asked for those in opposition to the request in the audience to raise their hands - approximately 15 people raised their hands in opposition Mr McDarris stated he has reviewed the project documentation on file in the Planning Department and he noted the traffic study was performed in 2007 as well as there were no other expert reports available such as an appraisal or lighting report Mr McDarris asked for the Board to deny the request for the 24 hour convenience store with gas pumps or refer it back to the Planning Board for further review PagePage pageNumber9719 March 1 , 2010 – 6 00 pm Continued Charles “ Chuck ” Bright , 2000 River Grove Lane , Knightdale , owner operator of the Fiddle - Stix Exxon store located directly across the street from the subject site Mr Bright reiterated the previous comments of his attorney that he feels blindsided by the request Mr Bright informed the Board that his store was originally constructed in early 2005 and was operated by an independent until 2006 and due to the volume of gas stations along the corridor , the independent’s business suffered Mr Bright stated in 2006 , his company purchased the location and operated the store running into many of the same issues experienced by the previous owner He reported in 2007 , his company spent a significant amount of money to bring in the Exxon brand name as well as a Subway and enhance the image of the store He stated they currently offer good products and services at competitive prices for the residents in the area Mr Bright reported in June 2009 , they learned that the Murphy store was being proposed further down the road which they did not oppose at that time Mr Bright stated it is not their goal to oppose competition and they understand there is competition in the business ; however , he stated since the Murphy store opened in 2009 , his business has decreased by 40 and they are presently struggling to keep their doors open He stated if another gas station is allowed to open across the street then they will more than likely be forced to close leaving the location vacant and putting several people in the area out of work Mr Bright also stated that in reference to the concerns by the Austin Pond Subdivision residents , he has never seen a quiet gas station and he uses speaker systems at his gas pumps Commissioner Braswell commented that he recently saw an article in the newspaper on a gas war and he stated that it would appear to him that there is more than competitive pricing on gas in the subject area Mr Bright confirmed that people in the area are getting a good price on gasoline and he has been selling below the market value for the last 45 days Mr Bright stated he is not saying he does not want competition in order to make more money , but rather he stated another gas station will increase the intensity and drive him and some of his colleagues out of business Commissioner Mims commented that in listening to the statements by Mr Bright , Mr Tate may have a difficult time trying to find a client to build a store on the subject site Mr Bright confirmed his belief that an independent will not locate on the subject site , and that it would have to be a Wilco Hess or Sheetz type operation which has the ability to come in and benefit from their other locations , allowing for lower prices at the subject site until some of the other area stores close and then raise their prices Pankage Palmar , owner operator of the gas station at Cleveland School Road constructed in 2009 Mr Palmar reported that when the Murphy gas station opened , it impacted his business by approximately 20 – 40 Mr Palmar stated the subject site is approximately one mile from his store and if a 24 hour gas station opens , his chances of survival are highly unlikely John Strickland , 618 Lake Shore Drive , Goldsboro , reported his company owns a convenience store located approximately 1 ½ miles from the subject site Mr Strickland spoke on his concerns regarding the value of their property being deluded He stated there is ample competition in the area and he does not feel the proposed use is a public necessity Mr Strickland reported his company is test marketing some of the video speaker systems used at the pumps and he stated the systems are loud Mr Strickland also reported on the noise that is associated with the customer vehicles that frequent the stores with auto sound systems of their own Derek Coryea , 1301 Woodgate Manor Ct , Raleigh , stated he has constructed five convenience stores in Johnston County and he noted that on most occasions , the sites he selects for convenience stores are not zoned correctly and he must come before the Board of Commissioners and request the proper zoning as well as a special use permit Mr Coryea stated that in every instance where he has come before the Board of Commissioners , he has been required to submit a detailed site plan noting the location of everything including the gas pumps proposed for the property Mr Coryea commented that he has a lot of respect for the County Inspections and Planning staff’s work He stated that at first it can be aggravating to comply with all the requirements by the two departments for a project , but he noted everything they require has a reason and a purpose Mr Coryea also stated he is on the Planning Department’s listserve that sends out notices of upcoming hearings on rezonings and special use permits Mr Coryea indicated that such e - mails from the listserve always have attachments including site plans for the proposed special use He reported if a convenience store is planned , then a lot of times they are noted on the site plan ; however , he stated when this particular hearing notice came up , no gas pumps or anything that would indicate the applicant would be selling gas was included on the plan Mr Coryea stated his point is that considering everything he is required to do , it does not appear that Mr Tate was required to do ; otherwise , the site plan would denote where the canopy would be located asPage0720 March 1 , 2010 – 6 00 pm Continued well as the building layout , stormwater plans , etc Mr Coryea stated he recently went before the Clayton Town Council and he had to submit not only a site plan , but all the building elevations , driveway orientations tentatively approved by the State , as well as sidewalk plans Mr Coryea stated it is very expensive to create all the documentation needed to present a request to the County only to possibly be denied Mr Coryea asked in the future , if he would still be required to submit a site plan Mr Coryea stated perhaps the project has changed hands so many times , the requirement for a detailed site plan slipped through the cracks Charles McDarris , Attorney with Bailey & Dixon , LLP , 434 Fayetteville Street , Raleigh , representing Charles Bright , who owns the Fiddle - Stix Exxon , addressed the Board again and reiterated that his client feels blindsided by the request and they oppose the use of a convenience store with gas pumps Mr McDarris stated that Section 14 - 251 of the County’s Code of Ordinances regarding the intent of special use permits states that the use will provide an environment of stable character in harmony with surrounding areas Mr McDarris argued that the proposed use will not provide for an environment of a stable nature and it is of great concern for a Sheetz or other similar large organization to be allowed to open a 24 hour convenience store with gas pumps Mr McDarris asked the Board to deny the 24 hour a day convenience store operation at the subject site Mr Tate informed the Board that he believed they could address the noise and light issues brought up ; however , he stated if it would be acceptable to the Board , he would be willing to bring a site plan back to the Commissioners for approval as part of the special conditions Commissioner Mims stated it has been pointed out by several people as well as he understood the proposed modification was a request for a convenience store ; however , now the Board is learning that gas pumps will be included He asked Mr Tate if gas pumps are planned as part of the convenience store Mr Tate stated he assumed that gas pumps would be included as an approved use under the zoning for retail Commissioner Mims noted this is a special use permit with specific special use conditions Mr Tate stated uses such as convenience stores or gas stations were not restricted from the previously approved permitted uses Commissioner Mims indicated that he believed the request to add a 24 hour convenience store operation as an acceptable use is part of the modification presently under consideration Mr Tate stated retail uses have always been a permitted use He commented that a florist is not specifically listed as a permitted use , but he stated a florist is allowed as a retail use Commissioner Barbour stated in the Planning Board meeting it was clarified that a convenience store with gas pumps was a permitted use under the approval from 2009 and during the Planning Board meeting everyone realized that gasoline would be sold at the site Mr Tate reiterated that he is willing to bring a site plan back to the Board of Commissioners for approval , if appropriate Chairman Stewart commented that on the site plan , it appears that only the driveway modifications have been included and he stated he would prefer to see exactly where the convenience store with gas pumps would be located before discussing the request Mr Gray stated the site plan provided in the agenda packet is part of the original approval in 2009 He explained the approval in 2009 allows for all office , retail , daycare , and other commercial uses which opens the site up for any commercial use except for those specifically listed in the special use conditions as excluded uses Mr Gray noted a convenience store was not listed as an excluded use ; therefore , based on the previous approval in 2009 , the applicant can construct a convenience store as long as he does not operate the facility 24 hours a day and meets all the other conditions in the permit Mr Gray stated from the Planning Board’s standpoint , there were no questions regarding whether or not a convenience store is allowed ; but rather the question was whether or not to allow the store to operate 24 hours a day He stated with regards to the question mentioned earlier concerning the language in the notice , he noted that for the modification request in 2008 the actual uses were listed as part of the notice which was an application to allow for the construction and operation of a commercial shopping center to include a grocery store , retail uses , pharmacy , bank , convenience store , office and service establishments Mr Gray reported that even though the request was adjusted in 2009 , it still allows for all other commercial uses even though a convenience store with gas pumps is not specified Mr Gray statedPage1721 March 1 , 2010 – 6 00 pm Continued therefore , it was the Planning staff and the Planning Board’s recommendation for approval , considering that the special conditions proposed would address the concerns of the neighbors in order to minimize the impact Chairman Stewart commented that while he cannot state Mr Gray is incorrect , he indicated that the request seems to be coming in on the side door Commissioner Barbour noted the applicant can construct and operate a convenience store with gas pumps under the previous approvals , but he just cannot operate the facility 24 hours a day Chairman Stewart reiterated that a site plan is needed due to the sensitivity of the request with regards to the concerns of the neighboring subdivision Commissioner Barbour stated he understands Chairman Stewart’s comments on the need to have a final site plan ; however , he stated the argument seems to be over previous approvals Mr Gray informed the Board that staff will still require a detailed site plan to be submitted including all exhibits related to stormwater , topography contours , etc for the subject site , if the applicant chooses to go forward with plans based on the previous approvals At the inquiry of Commissioner Braswell , Mr Gray confirmed that based on the Board’s prior approval in 2008 , the applicant can construct a convenience store on the subject site at any time , he just cannot operate the store for 24 hours a day Mr Gray stated the convenience store was not specifically listed in the approval in 2009 ; however , it was stated that all other commercial uses would be allowed except for those excluded in the special use conditions consisting of building material supply , campgrounds , kennels , mini - storage facility , mobile home and RV sales , utilities facilities , communication facility , and fast food restaurants with drive - thru Mr Gray stated the modification request presently before the Board would be to allow a convenience store to operate 24 hours a day as well as to approve the additional requested right - in right - out on NC Hwy 42 Commissioner Mims asked if the site plans are recorded with the Register of Deeds Mr Gray stated the special use permit is recorded with the Register of Deeds ; however , the site plan is recorded and kept on file in the Planning Department Commissioner Mims asked what was the purpose of the site plan that has been submitted in the agenda packet , if it does not show the locations of a proposed convenience store with gas pumps and other planned uses such as the daycare Mr Gray stated typically with a planned development such as the one being discussed , the site plans submitted are all preliminary He noted once detailed site plans are submitted for the buildings , more than likely they are different from the preliminary submittals ; however , he clarified that the access points and buffering requirements must remain as approved by the Board Commissioner Braswell asked , disregarding the 24 hours a day operation issue , if the applicant could place a convenience store anywhere on the subject site based on the approval in 2008 by the Board of Commissioners Mr Gray stated in a situation like the proposed modification request , because of the traffic circulation involved with a convenience store and the way the buildings are preliminarily proposed , staff could not prohibit the convenience store from being located at the back of the subject site ; however , staff could prohibit traffic circulation and parking at the back of the site Commissioner Pope asked if the request for a 24 hour a day convenience store operation was added at the Planning Board meeting Mr Gray reported that the request for a 24 hour a day convenience store was not added at the Planning Board meeting , but rather it was a part of the request from the applicant along with the additional right - in right - out on NC Hwy 42 Mr Gray stated the Board does not have to allow the convenience store to operate 24 hours a day He noted the Board could consider options such as placing more restrictions within the special conditions on a 24 hour a day operation of the convenience store to specify that it will only be allowed for a convenience store with gas station located along NC Hwy 42 ; therefore , a gas station would not be allowed to locate on the other lots within the subject site Page2722 March 1 , 2010 – 6 00 pm Continued Commissioner Mims asked what the distance is between the original driveway on NC Hwy 42 to the proposed new right - in right - out and then to Cornwallis Road Mr Gray stated the approximate distance is 300 – 400 feet in between the original driveway on NC Hwy 42 to the proposed right - in right - out and then an additional 300 – 400 feet to Cornwallis Road Mr Gray stated Tim Little , NC DOT District Engineer , has reviewed the plans and has no concerns with the access points Mr Gray also pointed out that a traffic engineer sits on the Planning Board and he also had no concerns Chairman Stewart addressed the area convenience store owners operators in the audience that spoke during the hearing and he stated the Board of Commissioners is not in the business of concerning themselves with competition issues amongst businesses There being no further comments , the Chairman recessed the Special Use Hearing for Case 07 - 30 Decision on Special Use Case 07 - 30 Case 07 - 30 A request to modify the Special Use Permit as follows a commercial subdivision with office , retail , daycare , and other commercial uses Parcel is located at the northeast quadrant of the intersection of Cornwallis Road SR 1525 and NC Hwy 42 W in Cleveland Township Tax ID 05F02021J Owner Cornwallis NC CPDC , LLC Applicant Tony M Tate Landscape Architecture , PA Motion Based on the findings of facts and revised special use conditions with revisions to include adding two special conditions stating the convenience store shall be located in the area between the proposed right - in right - out on NC Hwy 42 and Cornwallis Road closer to the corner of the subject site and that the final site plan shall come back to the Board of Commissioners for approval , Commissioner DeVan Barbour moved the Board approve the modification to the special use permit for Case 07 - 30 for a parcel of land located at the northeast quadrant of the intersection of Cornwallis Road and NC Hwy 42 W in Cleveland Township Commissioner W Ray Woodall seconded the motion Further Discussion Chairman Wade M Stewart asked the County Attorney for his opinion County Attorney David Mills stated the Board has received the evidence and can make a decision on the request based on the components of the project complying with the County’s ordinance He advised that the additional special conditions proposed in the motion by Commissioner Barbour are well - founded and the decision is entirely within the Board’s hands Commissioner Jeffrey P Carver commented that with so many changes the Board has seen on the request in the past , he is concerned that something has been missed and therefore , he would be voting against the motion Commissioner Carver indicated his preference to send the request back to the Planning Board for further review Commissioner Tony Braswell agreed with Commissioner Carver that he would prefer to send it back to the Planning Board for more review At the inquiry of Chairman Stewart , Planning Director Berry Gray stated the Board can choose to table the request and send it back to the Planning Board , but if the Board denies the request for the 24 hour convenience store operation , then the applicant must wait twelve months to resubmit the request again for consideration Mr Gray stated with the additional special condition requiring the Board of Commissioners to approve the final site plan , he noted staff can also send the detailed site plan to the Planning Board for review before coming to the Board of Commissioners for consideration Commissioner Carver spoke on the importance of having a detailed site plan He stated that the Board is always asking for a master plan for development , yet the request continues to come back to the Board with something different Chairman Stewart noted the motion by Commissioner Barbour and asked what would need to happen if there is a preference to send the request back to the Planning Board Page3723 March 1 , 2010 – 6 00 pm Continued Mr Mills stated there is a motion that has been duly seconded on the floor and the Board would need to vote on the motion unless Commissioner Barbour wishes to withdraw his motion Chairman Stewart asked Commissioner Barbour if he would prefer to withdraw his motion Commissioner Barbour confirmed that his motion stands as made Commissioner W Ray Woodall stated his second to the motion stands Vote Motion Fails – Request is denied The motion failed by the following vote Ayes Commissioners DeVan Barbour , W Ray Woodall , and Tony Braswell Nays Commissioners Wade M Stewart , Allen L Mims , Jr , Jeffrey P Carver , and Cookie Pope The Board took a five minute recess The Chairman opened the Rezoning Hearing for Case 09 - 24 Case 09 - 24 Petition to rezone 162 acres located at 890 Freedom Road in Cleveland Township from Agricultural Residential AR to General Business - Special Use District GB - SUD Tax ID 15H07008E Owner Applicant Steven Kelly Strickland Planning Director Berry Gray stated the petition is to rezone 162 acres located at 890 Freedom Road in Cleveland Township from Agricultural Residential to General Business - Special Use District Mr Gray noted the special use permit request associated with the rezoning He stated the owner applicant is presently operating an automotive mechanical , paint and body repair business on the site and the request came in as a violation via a complaint from a neighbor Mr Gray noted the surrounding land uses are zoned Agricultural Residential and used for such purposes along with single family dwellings Mr Gray also noted that the owner applicant has pictures with him of the area that he wishes to present to the Board Steven Kelly Strickland , Owner Applicant , informed the Board that the operation is a joint venture between him and his son Mr Strickland explained they repair vintage automobiles and the work primarily consists of spot painting and small mechanical repair to get the cars ready for auction He stated they are not in the collision business where there is a lot of traffic in and out of the site Mr Strickland reported they contacted the North Carolina Division of Air Quality who has inspected the site Mr Strickland stated the building they work in is a 36 ’ x 50 ’ structure and he noted that according to the Division of Air Quality , the volume of air space in the building exceeds the minimum volume needed to require a paint booth Mr Strickland reiterated that most of their painting is spot painting He stated the building has two 15 ’ x 16 ’ sliding doors and the building is open to the roof The front building is used primarily to detail cars and they use environmentally friendly cleaners in their operation Mr Strickland stated they have planted 175 Leland Cypress trees approximately three to five feet in height as a buffer and if any sandblasting is performed , the trees will be a barrier for particle collection Chairman Wade M Stewart asked for clarification on the dimensions of the buildings on the subject site Mr Strickland stated the building at the front of the property is a 40 ’ x 60 ’ structure and the building in the back is a 36 ’ x 50 ’ structure He stated part of the building in the front is used as his personal residence and he has met all codes regarding fire walls At the inquiry of Commissioner Allen L Mims , Jr , Mr Strickland confirmed that he does live on the subject site and the lot is 162 acres in size Commissioner Mims stated that a residence is not a permitted use within a General Business zoning classification Mr Gray confirmed Commissioner Mims ’ comment that a residence is not a permitted use within a General Business zoning classification ; however , the applicant is requesting a special use permit so he canPage4724 March 1 , 2010 – 6 00 pm Continued request to have his residence on the subject site and operate the business out of the garage Mr Gray stated in the past , the Board has approved special use permits which include residences along with the actual business Commissioner Mims asked what would need to happen if the owner applicant wished to add on to his residence Mr Gray stated as long as the residence is part of the special use permit , then the owner applicant can add onto the residence if he wishes Bob Spence , 212 S Second Street , Smithfield , Attorney for the neighboring property owners on both sides of the subject site , stated his clients strongly oppose the rezoning Mr Spence stated the area is a residential neighborhood and he does not believe the use is consistent with the neighborhood and further , could not be made to be consistent with any special conditions Mr Spence reported that his client , George Godwin , has lived next to the subject site for the past 14 years and Mr Godwin’s daughter - in - law , Rachel , has lived to the south of the site with her husband and young children for the past six years Mr Spence stated the property was originally a farm that was divided up into approximately ten lots , designed by Dennis Blackmon He stated the property was intended to be used as a residential area and he noted the location is not near an intersection or commercial traffic He stated the location is a low density secondary traffic area Mr Spence s