April 6, 2009 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 321 Meeting of the Johnston County Board of Commissioners April 6 , 2009 6 00 pm The Johnston County Board of Commissioners met in regular session Monday , April 6 , 2009 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 , J Mark Payne , 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 TESS of North Carolina Ms Kaye Brimmage , Executive Director for TESS of North Carolina Taking Education Skills Seriously addressed the Board and provided a background on her organization Ms Brimmage reported that TESS is a nonprofit educational organization aimed at assisting at - risk students with proven academic potential by preparing them for higher educational opportunities TESS provides a means of helping these students prepare and enter college institutions both educationally and financially Ms Brimmage explained that TESS has purchased the old Princeton School located on Edwards Street in Princeton and she would like to work with the Board of Commissioners as a partnership on making the initiative a success The Board thanked Ms Brimmage and her associates for their work and instructed them to contact the County Manager or the Clerk to the Board for any assistance in the future The Board also provided Ms Brimmage with a number of contacts that may be able to help TESS carry out its mission B Animal Services – Report on Recent Rabies Clinics Ernie Wilkinson , Director of Animal Services , reported on the recent rabies clinics held across Johnston County Mr Wilkinson stated the clinics were a success with over 4,000 rabies vaccinations administered Mr Wilkinson complimented the Animal Services staff on their work during the clinics and also stated he appreciated the support of the Board of Commissioners C Timothy Hodges , President Johnston County NAACP Timothy Hodges , President of the Johnston County NAACP , stated he was unable to attend the March 2 , 2009 6 00 pm meeting of the Board of Commissioners , but through reports received from the participants of the meeting as well as articles in the local newspapers , it appeared to him that the discussion regarding NC Stop Torture Now’s request to the Commissioners was tense Mr Hodges expressed his admiration for living in a country which provides such a forum where people have the ability to freely express their own opinions to their government officials Mr Hodges further stated that he had the opportunity to speak with a Commissioner since the meeting and that they both agree they have different views of the request made by NC Stop Torture Now Mr Hodges asked the Board to reconsider calling for an investigation of Aero Contractors at the Johnston County Airport D Chuck Fager , 223 Hillside Avenue , Fayetteville , NC Chuck Fager noted that the US Senate Committee on Intelligence has announced that it will be undertaking an initial investigation , through document review , into matters concerning the treatment of detainees Mr Fager supplied copies of documentation that NC Stop Torture Now will be forwarding to the Senate Committee for review Mr Fager stated that it is his belief that this is an indication that the investigation on accountability will be coming this way and he further encouraged the Board of Commissioners to take this opportunity to get out in front of it Page322 April 6 , 2009 – 6 00 pm Continued E John Heuer – 13 Matchwood , Pittsboro , NC John Heuer stated he is a member of the Chapel Hill - Carrboro NAACP , Director of North Carolina Peace Action , Associate Member of Veterans for Peace , and also served in Vietnam Mr Heuer recalled comments from the March 2 , 2009 6 00 pm meeting made by Chairman Wade Stewart regarding his strong convictions to protect children from abuse Mr Heuer offered thoughts for consideration regarding what happens to the children of detainees and the abuse they may suffer Mr Heuer further stated that as citizens of the United States and Johnston County , we should stand for those children and account for the abduction and treatment of their fathers 2 Public Hearing Expansion of McLemore Fire District Boundaries Advertised – The Smithfield Herald – March 25 and April 1 , 2009 Certified letters were mailed to all affected property owners on March 5 , 2009 The Chairman opened the public hearing Chris Perry , Johnston County Fire Marshal , explained that with the construction of the Cleveland Fire Station # 2 , the Cleveland Fire Department has requested an expansion of the McLemore Fire District to include a small portion of the County which is not currently in a fire district since this area will now be within the six road mile distance requirement set forth by the North Carolina Department of Insurance Mr Perry stated if the Board chooses to approve the request , the next step in the process will be to submit all documentation to the Department of Insurance for review He noted that the citizens in the proposed expansion area would begin paying the McLemore Fire District tax rate , currently at 0065 per 100 valuation ; however , would see a savings in their homeowners insurance premiums Mr Perry stated it is the goal of Johnston County Emergency Services to have all areas in Johnston County located within a rated fire insurance district , so that property owners may realize discounts on homeowners insurance Mr Perry offered to answer any questions Commissioner Tony Braswell reiterated that the savings property owners would see on their homeowners insurance premiums is significant Commissioner Jeffrey P Carver asked how many other areas in the County are not located within a rated fire insurance district Mr Perry reported that there are still a number of areas not within a rated fire insurance district due to the Department of Insurance’s six road mile distance requirement Mr Perry clarified that those areas do receive coverage from the nearby fire departments ; however , they do not receive the insurance savings benefit of being within a rated district , nor do they pay the fire district tax rate that supports the fire department He stated the Emergency Services Department will be working with the fire departments in the future to try and eliminate as many of these areas as possible In response to a question from Commissioner Allen L Mims , Jr , Mr Perry noted that the fire departments typically initiate the requests for boundary expansions There being no further comments , the Chairman closed the public hearing Commissioner W Ray Woodall moved the Board adopt the following resolution providing for the expansion of the McLemore Fire District Boundaries in Johnston County Commissioner Cookie Pope seconded the motion , which carried by unanimous vote RESOLUTION PROVIDING FOR EXPANSION OF THE BOUNDARIES OF THE MCLEMORE FIRE DISTRICT OF JOHNSTON COUNTY WHEREAS , the McLemore Fire District has been operating since its creation by the Johnston County Board of Commissioners ; and WHEREAS , the Board has determined , after receiving a request from the Cleveland Volunteer Fire Department , which serves the District , that the District should be expanded to include certain parcels of land contiguous to the District ; and WHEREAS , pursuant to NC General Statutes § 153A - 303 , the Board has determined to extend the boundaries of the District to include the parcels ; WHEREAS , the Board resolved to hold a public hearing with respect to such extensions on April 6 , 2009 , and directed that the appropriate representatives of the County take the necessary actions to properly notice such public hearing as provided by law ; andPage323 April 6 , 2009 – 6 00 pm Continued WHEREAS , pursuant to NC General Statutes Section § 153A - 303 e a notice of public hearing was prepared stating the date , hour and place of the hearing and its subject and stating that the report containing a map of the District and the areas to be annexed were available for public inspection in the office of the Clerk to the Board , and that such annexation fit the requirements of 153A - 303 ; and WHEREAS , pursuant to NC General Statutes § 153A - 303 e , the notice of public hearing was published at least once in the newspaper that circulates in the proposed District , and the notice has been mailed at least four weeks before the date of the hearing to the owners as shown by the county tax records as of the preceding January 1 of all property located within the areas to be annexed WHEREAS , a public hearing was held at 6 00 PM on April 6 , 2009 , in the Commissioner’s Room , Courthouse Annex , Smithfield , North Carolina at which time taxpayers and all other interested persons appeared and were heard concerning the question of expanding the boundaries of the McLemore Fire District of Johnston County ; and WHEREAS , at such meeting the Board determined that it was appropriate to extend the boundaries of the District to include additional parcels of land ; and WHEREAS , the Board , following the public hearing finds that 1 The areas to be annexed are contiguous to the District , with at least one - eighth of the area’s aggregate external boundary coincident with the existing boundary of the District 2 The residents of all the territories to be annexed into the District will benefit from the District’s annexation ; and 3 It is economically feasible to provide the proposed service or services in the expanded district without unreasonable or burdensome annual tax levies ; WHEREAS , the Board now desires to expand the territories described herein into the McLemore Fire District of Johnston County ; NOW , THEREFORE , BE IT RESOLVED BY the Johnston County Board of Commissioners meeting in regular session at Smithfield , North Carolina on April 6 , 2009 , do the following 1 It is hereby found that a The areas to be annexed are contiguous to the District , with at least one - eighth of the area’s aggregate external boundary coincident with the existing boundary of the District ; b The residents of all the territories to be annexed into the District will benefit from the District’s annexation ; and c It is economically feasible to provide the proposed service or services in the expanded district without unreasonable or burdensome annual tax levies ; 2 The McLemore Fire District of Johnston County is thereby revised as follows McLemore Fire District Served by Cleveland Fire Department Revised Boundary Description Beginning at a point 1 on SR 1010 Cleveland Road at the boundary of Wake - Johnston County line ; thence in a northeasterly direction along the Johnston - Wake County line to a point 2 at coordinate 35 Degrees 38 Minutes 3421 Seconds North by 78 Degrees 32 Minutes 5592 Seconds West ; thence in an southeasterly direction to a point 3 on SR 1525 Cornwallis Road , 03 miles north of the intersection of Willis Road and SR 1525 Cornwallis Road , excluding all property on SR 1525 Cornwallis Road between this and the preceding point ; thence in a southeasterly direction to a point 4 on NC Highway 42 at its intersection with SR 1549 Austin Pond Road ; thence in a southeasterly direction to a point 5 on SR 1569 Blue Pond Road , 120 miles south of NC Highway 42 ; thence in a northeasterly direction to a point 6 on SR 1556 Government Road , 70 mile southeast of intersection of SR 1569 Blue Pond Road and SR 1556 Government Road ; thence southeasterly to point 7 on SR 1557 Jack Road , 20 mile southwest of intersection of SR 1555 Barber Mill Road and SR 1557 Jack Road ; thence in a northeasterly direction to point 8 on SR 1555 Barber Mill Road at the intersection of SR 1557 Jack Road , excluding all property on SR 1557 Jack Road between this and the preceding point ; thence in a southeasterly direction to a point 9 on SR 1560 Ranch Road at the intersection of SR 1557 Jack Road , excluding all property on SR 1557 Jack Road between this and the preceding point ; thence in a southeasterly direction to a point 10 at coordinate 35 Degrees 35 Minutes 2620 Seconds North by – 78 Degrees 28 Minutes 067 Seconds West , excluding all property on Lillian Drive and McGirt Court ; thence in a southeasterly direction to a point 11 on SR 1561 Lee Road at the intersection of SR 1562 Steel Bridge Road ; thence in a southeasterly direction to a point 12 on SR 1010 Cleveland Road , 50 mile east of its intersection of SR 1505 Dickinson Road ; thence in a southwesterly direction to a point 13 on SR 1505 Dickinson Road , 50 mile south of its intersection with SR 1010 Cleveland Road ; thence in a southwesterly direction to a point 14 on SR 1506 Freedom Road , 80 mile southeast of its intersection with SR 1504 Crantock Road ; thence in a southwesterly direction to a point 15 on SR 1507 Smith Road , 60 mile north of NC Highway 210 at the crossing of Middle Creek ; thence in a westerly direction following the run of Middle Creek to point 16 on SR 1330 Raleigh Road at the intersection of SR 1517 Sanders Road ; thence in a northwesterly direction to a point 17 on Interstate I - 40 , 50 mile north of SR 1517 Sanders Road ; thence in a northwesterly direction to a point 18 on SR 1524 Old Drug Store Road at the intersection of NC Highway 50 ; thence in a northerly direction to a point 19 on NC Highway 42 , 30 mile east of NC Highway 50 , excluding all property on Willowcroft Court , Wyndham Drive , Breckenridge Drive , Amberly Court and Ivey Gate Lane ; thence in a northwesterly direction to a point 20 at the intersection of NC Highway 50 and SR 1546 Pierce Road ; thence in a westerly direction to aPage324 April 6 , 2009 – 6 00 pm Continued point 21 at the intersection of the Wake County line and Buffalo Creek ; thence in a northeasterly direction to the beginning point of 1 NOTE This district excludes any properties within a municipality This description establishes the boundaries for the McLemore Insurance Fire District th Adopted this the 6 day of April , 2009 3 Public Hearing Rezoning and Special Use Requests Cases 04 - 41 ; 05 - 15 ; 08 - 34 ; 09 - 01 ; 09 - 02 Advertised – In The Smithfield Herald – March 25 and April 1 , 2009 Certified letters were mailed to adjoining property owners on March 23 , 2009 Notices were posted at the locations on January 27 , 2009 for Cases 04 - 41 ; 05 - 15 ; 08 - 34 ; 09 - 01 ; 09 - 02 The Chairman opened the Special Use Hearing for Case 04 - 41 Case 04 - 41 A request has been made to modify the Special Use Permit as follows original permit allows for the construction and operation of batting cages , and an athletic training facility with snack bar and arcade The applicant is hereby requesting that the permit be modified to add the use of the existing building for church worship services and associated church activities Property is located at 9180 Cleveland Road SR 1010 in Cleveland Township Tax ID 06F04022V Applicant Kingdom Builders Fellowship International Ministries Larry Williams , Jr Owner Double DJ Properties Denton Lee III Those wishing to speak on special use case 04 - 41 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 He noted the original permit allows for the construction and operation of batting cages and an athletic training facility with snack bar and arcade The applicant is hereby requesting that the permit be modified to add the use of the existing building for church worship services and associated church activities Mr Gray noted the property is located at 9180 Cleveland Road 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 04 - 41 on December 31 , 2008 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 February17 , 2009 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 04 - 41 and made the following recommendations Upon a motion by Mr Gathers , seconded by Mr DeLaine and carried unanimously 8 - 0 , the Planning Board recommended preliminary approval of the Special Use Permit for Case 04 - 41 based on the following Findings of Facts and Special Use Conditions 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 property is situated in the midst of growing and developing communities of Johnston County It will aide in the social and spiritual needs of these surrounding communities by providing worship services and church related activities Staff Modification of the Special Use permit with conditions will maintain the public health , safety , and general welfare 2 That the use of development appears to comply with all required use and intensity regulations of Articles II and IV of the Johnston County Land Development Code and the applicable specific standards in section 14 - 257 and with all applicable regulations ; Applicant The current zoning of the surrounding area is R10 and RA30 This zoning is the accepted zoning by right for churches to establish in It is the desired zoning of local , state and federal agencies This request is in keeping with such PagePage pageNumber5325 April 6 , 2009 – 6 00 pm Continued Staff The parcel , being zoned General Business - Special Use District , will continue to fit well and serve those residents in the community Churches are permitted in the AR district and are not considered an intense business use 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 Having such property is a church religious entity would aide in the “ community ” footprint that is and is being established It would give the surrounding communities a place for social interaction and promotion Staff The church use at the site will be compatible with existing surrounding land uses Churches are permitted in AR districts with no conditions ; this suggests that the proposed modification of the SUP would be compatible with the neighborhood and the Land Development Code 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 This request and use is in conformity with the Land Use Development code in that it parallels with the surrounding zoning It does not conflict with said zoning , in fact it will enhance it by keeping with the existing development which is adjacent to it Staff The development of the site will conform to all applicable Land Development Code requirements Specific Land Uses APPLICANT Modify special use permit to include Church Worship Services and church activity Special Use Conditions 1 The Special Use Permit shall expire with the violation of any Special Use Condition 2 Submittal of a detailed site plan for review and approval by Planning and Zoning staff 3 Installation of a Class B buffer 3 large trees , 4 small trees , and 12 shrubs per 100 linear feet 4 Operation hours Batting cages and athletic facility - Monday thru Saturday , 9 00 am to 10 00 pm , Sunday , 1 00 pm to 9 00 pm Church - 5 am to midnight , 7 days a week 5 Signage Monument sign or ground sign no more than six feet from the ground to the top , not to exceed 25 square feet per linear foot of road frontage 6 All lighting to be engineered so as not to point outside the property lines 7 Proof of liability insurance minimum of 1 Million A copy shall be kept on file in the Planning Office 8 All buildings shall comply with the regulations set forth by Johnston County Environmental Health , Public Utilities , and Building Inspections departments 9 An addendum to the original NCDOT driveway permit , or a new driveway permit , must be obtained prior to the change of use Compliance with any traffic improvements as may be required by NCDOT 10 If the existing building is enlarged in the future , an updated site plan shall be submitted to the Planning Department for review and approval Changes are listed in bold print Mr Gray listed and reviewed the proposed modifications to the special use conditions Mr Gray stated the Planning Board did discuss in detail the special condition regarding liability insurance and had concerns with not specifying an amount and therefore revised the language to read “ minimum of 1 million ” Commissioner Tony Braswell expressed his concerns regarding the special condition requiring liability insurance , indicating that he does not believe the Board should include that special condition and that it should be left up to the applicant owner Commissioner Braswell stated he also did not believe that the Planning staff should be required to keep up with whether or not the applicant renews the policy each year Commissioner DeVan Barbour agreed with Commissioner Braswell that the special condition should be deleted County Attorney Mark Payne advised that it is entirely within the Board of Commissioners ’ discretion as to whether or not the special condition regarding liability insurance should be included Mr Payne indicated that he felt the County would have no liability either way nd Commissioner Allen L Mims , Jr recalled that at the March 2 meeting , he was under the impression that Commissioner Braswell’s concern was with the amount of liability insurance that should be required Commissioner Braswell clarified that his concern is over the fact that the special conditions require liability insurance at all , noting that if a minimum standard is set by the Board , then it could raise a legal issue for the County if someone is hurt on the property Commissioners Braswell and Barbour both voiced their concerns that the exposure should fall to the applicant and or owner and if the County requires the insurance , then possibly the County could have exposure Commissioner Mims asked Mr Gray to comment on why Planning Board Member Brad Schulz felt the special condition regarding liability insurance should be included PagePage pageNumber6326 April 6 , 2009 – 6 00 pm Continued Mr Gray reported that to his knowledge , he believed that Mr Schulz was uncomfortable with not having an actual limit set on the liability insurance Applicant Larry Williams , Jr of Kingdom Builders Fellowship International Ministries , stated he has been the Pastor of the Church for the last four years and through the owner of the subject site , Mr Denton Lee , they would like to have the opportunity to expand Mr Williams stated it is their hopes to provide ministry services to the growing community Mr Williams informed the Board that regarding liability insurance , they are fully covered as a ministry Mr Williams thanked his congregation members that were present for their support and offered to answer any questions At the inquiry of Commissioner Mims , Mr Williams stated they currently have 2 million in liability insurance coverage Commissioner Cookie Pope noted that if the Church congregation grows at all , they may outgrow Mr Lee’s facility Mr Williams stated they will be using Mr Lee’s building as a pilot facility and will branch out if needed in the future Chairman Wade M Stewart asked if any other Commissioners had questions Mr Gray reported the Planning Board recommended approval of the modification to the special use permit There being no further comments , the Chairman recessed the Special Use Hearing for Case 04 - 41 Decision on Special Use Case 04 - 41 Case 04 - 41 A request has been made to modify the Special Use Permit as follows original permit allows for the construction and operation of batting cages , and an athletic training facility with snack bar and arcade The applicant is hereby requesting that the permit be modified to add the use of the existing building for church worship services and associated church activities Property is located at 9180 Cleveland Road SR 1010 in Cleveland Township Tax ID 06F04022V Applicant Kingdom Builders Fellowship International Ministries Larry Williams , Jr Owner Double DJ Properties Denton Lee III Based on the following findings of facts and the revised special use conditions eliminating the condition regarding liability insurance , Commissioner DeVan Barbour moved the Board approve the modification to the special use permit for Case 04 - 41 to add the use of the existing building for church worship services and associated church activities on property located at 9180 Cleveland Road in Cleveland Township Commissioner Tony Braswell seconded the motion Further Discussion Commissioner Allen L Mims , Jr stated he believed it would behoove the Board to require the condition regarding liability insurance ; however , he would not vote against the motion Commissioner Jeffrey P Carver stated language regarding liability insurance has been required in approximately half of the special use permits approved by the Board Commissioner Carver asked County Attorney Mark Payne to look into the issue and give a formal opinion to the Board on the matter Chairman Wade M Stewart stated the Planning Board ultimately takes direction from the Board of Commissioners and the Board needed to consult with the County Attorney to make a decision as to whether or not liability insurance should be required Once that decision has been made , it can be sent on to the Planning Board The motion 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 PagePage pageNumber7327 April 6 , 2009 – 6 00 pm Continued 1 The Special Use Permit shall expire with the violation of any Special Use Condition 2 Submittal of a detailed site plan for review and approval by Planning and Zoning staff 3 Installation of a Class B buffer 3 large trees , 4 small trees , and 12 shrubs per 100 linear feet 4 Operation hours Batting cages and athletic facility - Monday thru Saturday , 9 00 am to 10 00 pm , Sunday , 1 00 pm to 9 00 pm Church - 5 am to midnight , 7 days a week 5 Signage Monument sign or ground sign no more than six feet from the ground to the top , not to exceed 25 square feet per linear foot of road frontage 6 All lighting to be engineered so as not to point outside the property lines 7 All buildings shall comply with the regulations set forth by Johnston County Environmental Health , Public Utilities , and Building Inspections departments 8 An addendum to the original NCDOT driveway permit , or a new driveway permit , must be obtained prior to the change of use Compliance with any traffic improvements as may be required by NCDOT 9 If the existing building is enlarged in the future , an updated site plan shall be submitted to the Planning Department for review and approval The Chairman opened the Rezoning Hearing for Case 05 - 15 Case 5 - 15 Petition to rezone 2478 acres of a 18969 acre tract located at the end of Buckleberry Road SR 2541 , in Boon Hill Township from Agricultural Residential AR to Industrial - 2 - Special Use District I2 - SUD Tax ID 04P13035 Owner D & P Land Applicant Barnhill Contracting Company Rob Barnhill Planning Director Berry Gray stated the petition is to rezone 2478 acres of a 18969 acre tract located at the end of Buckleberry Road , in Boon Hill Township from Agricultural Residential to Industrial - 2 - Special Use District Mr Gray noted the special use permit modification request associated with the rezoning Mr Gray stated the surrounding zoning is Agricultural Residential He noted the subject property along with the adjacent properties to the left and north are located within the floodway The County’s floodplain ordinance requires a no - rise certification for any type of development on the property , including excavation Mr Gray stated the applicant has submitted the no - rise certification which is satisfactory to the floodplain ordinance Mr Gray reported the subject property is located at the end of the dead end road with limited residential development Rob Barnhill , Barnhill Contracting Company , the applicant , stated he had originally asked for a 50 ft buffer but had received a 250 ft buffer requirement by the Planning Board unless they can obtain waivers from the adjacent property owners for the 50 ft buffer Mr Barnhill reported at the present time , they have not been able to secure the waivers from the adjacent property owners but would request to leave in the special conditions the option of the 50 ft buffer if the waivers can be obtained in the future He stated that otherwise , they would comply with the 250 ft buffer Mr Barnhill offered to answer any questions Commissioner W Ray Woodall asked if the subject property was the former Thornton Property that has been known to flood near the bridge Mr Barnhill stated the property is now owned by Danny Kornegy and there is a low area that could flood if the water level becomes elevated Mr Gray reported the Planning Board recommended approval of the rezoning There being no further comments , the Chairman recessed the Rezoning Hearing for Case 05 - 15 Decision on Rezoning Case 05 - 15 Case 5 - 15 Petition to rezone 2478 acres of a 18969 acre tract located at the end of Buckleberry Road SR 2541 , in Boon Hill Township from Agricultural Residential AR to Industrial - 2 - Special Use District I2 - SUD Tax ID 04P13035 Owner D & P Land Applicant Barnhill Contracting Company Rob Barnhill Commissioner Jeffrey P Carver moved the Board approve rezoning case 05 - 15 , to rezone 2478 acres of a 18969 acre tract located at the end of Buckleberry Road , in Boon Hill Township from Agricultural Residential to Industrial - 2 - Special Use District Commissioner W Ray Woodall seconded the motion , which carried by unanimous vote The Chairman reopened the Special Use Hearing for Case 05 - 15 PagePage pageNumber8328 April 6 , 2009 – 6 00 pm Continued Case 05 - 15 A request has been made to modify the Special Use Permit as follows original permit allows for the operation of sand mine Applicant is requesting that the Special Use Permit be applicable to an additional 2478 acres on the same tract of land Owner D & P Land Applicant Barnhill Contracting Company Rob Barnhill Those wishing to speak on Special Use Case 05 - 15 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 existing special use permit allowing for the operation of sand mine Mr Gray stated the applicant is requesting that the special use permit be applicable to an additional 2478 acres on the same tract of land Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 05 - 15 on August 29 , 2008 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 February17 , 2009 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 05 - 15 and made the following recommendations Upon a motion by Mr Browder , seconded by Mr DeLaine and carried by a vote of 8 - 0 , the Planning Board recommended preliminary approval for the Rezoning and Special Use Modification for Case 05 - 15 based on the following Findings of Facts and Special Use Conditions 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 Barnhill Contracting has been and will be operating under a Mining Permit We are monitored by MSHA and their safety requirements Staff The existing site has been in operation since the 1980 ’ s and is overseen by the State of NC The additional acreage will fall under the same rules and regulations as the existing facility and will therefore not pose a threat to the public health , safety or general welfare 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 In addition to operating under the Mining Permit and MSHA , we have been mining sand from this pit since the 1980 ’ s Staff This development will comply with the use and intensity regulations as set forth in the Land Development Code The Special Use Permit specifically lists all sections of the ordinance that pertain to the mining operation The permit will expire with the violation of any special use condition 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 The property will have a body of water remaining from the mining operation which may enhance the value of contiguous property Staff The facility is in a very rural area and has been in operation for approximately twenty years 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 Property developer will conform with Land Development Code 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 APPLICANT Use as a sand mine for own use in the construction business This is an Specific Land Uses extension of our existing operation Special Use Conditions 1 The Special Use Permit shall expire with the violation of any Special Use Condition PagePage pageNumber9329 April 6 , 2009 – 6 00 pm Continued 2 Submission of a detailed site plan for review and approval by Planning and Zoning Department Staff 3 Operation hours Monday – Saturday , 7 00 am – 7 00 pm 4 No signage 5 Obtain all required State permits and adhere to all State regulations 6 Existing vegetation shall remain within the buffer area 7 Approval of written consent from adjacent property owners for the reduction in buffer to 50 ’ If that cannot be agreed upon , the 250 ’ buffer remains in effect 8 Buffering , Setbacks , and Hours of Operation are set by the Johnston County Land Development Code under Section 14 - 257 , as follows see condition # 9 9 Johnston County Code of Ordinances CD14 66 re Mining operations d Extraction of earth products , mining operations Note The removal of top soil and other surface grading activities are exempted from this section 1 A site plan , and or information prepared by a state registered land surveyor , engineer , architect or landscape architect , shall contain the following a Extent of area to be excavated or mined ; b Aerial photograph of site and all areas within 1,000 feet of the perimeter of the property ; c Neighboring land use , road system , natural features and topographical minimum ten - foot contour intervals details ; d A site cross - section showing extent of overburden , extent of sand and gravel deposits , and water table ; e Location of proposed handling and storage areas for overburden , byproduct and excavated materials ; f Location and results of groundwater boring showing depth to groundwater ; g Any areas proposed for ponds or water collection and storage ; h Wind pattern details and on - site windbreaks ; i Soil conditions , soil descriptions and statement addressing agricultural productivity and reclamation ; j Traffic impact analysis addressing the capacity of the roads to serve the site ; k Access roads to the site , as well as on - site roads , with indication of surface treatment to limit dust ; and l Required setback areas , including buildings , landscape screening buffering existing and or proposed If plant materials are to be installed , the number , location , size and type of plants are to be identified 2 An operations plan which shall include a The date proposed to commence operations and their expected duration b Proposed hours and days of operation c Estimated type and volume of extraction d Description of method of operation , including the disposition of topsoil , overburden and byproducts e Methods to control and respond to spillage of extracted materials , overburden or byproducts and vehicular mud on off - site roads f Description of equipment to be used in the extraction process g Methods to prevent pollution of surface water and groundwater h Operational test wells including schedule of results , analysis and response i Compliance with provisions of the state mining program j Depth of extractive operations k Any phasing of the operation and the relationship among the various phases l Operating practices that will be followed to comply with the performance standards applicable to such operation 3 A rehabilitation plan which shall include a A statement of planned rehabilitation of the excavated land , including detailed methods of accomplishment and planned future use of the rehabilitated land ; b A plan of the site showing the final topography , after rehabilitation , to the same scale as the site plan , depicting any water areas and methods of preventing stagnation and pollution thereof , landscaping and ground cover proposed ; c Typical cross - sections showing planned rehabilitation ; d A phasing and timing plan , related to the phasing and timing portion of the operations plan , showing the progression of the rehabilitation and the date when it will be complete ; e The methods of disposing of all equipment , structures , dikes and spoil piles associated with the operations ; and f A copy of the rehabilitation reclamation plan as required by the state mining act where applicable 4 Standards of evaluation The following standards shall be used in evaluating an application a That the applicant demonstrates that the extractive use operation fulfills primarily a local need as opposed to a regional need in terms of supplying sand and or gravel for building and construction purposes b That all operations associated with extraction shall conform to the following performance standards 1 Direct illumination resulting from the operation shall not fall upon any land not covered by the application 2 Equivalent sound levels at the boundaries of the extraction site shall not exceed the following standards i Between 7 00 am and 7 00 pm , 68dBA ii Between 7 00 pm and 7 00 am , 58dBA c That vibration levels at the boundaries of the extraction site shall not exceed a maximum peak particle velocity – steady state 10 inches second ; and impact of 20 inches second Note The maximum particle velocity shall be the product of two times the frequency in cycles per second times the sum of threePage0330 April 6 , 2009 – 6 00 pm Continued mutually perpendicular displacement components recorded simultaneously For purposes of this article , steady state vibrations are vibrations which are continuous , or vibrations in discrete impulses more frequent than 60 per minute Discrete impulses which do not exceed 60 per minute shall be considered impact vibrations Maximum air blast vibration , measured at the lot lines of the zoning lot containing the extractive use , shall be 125 decibels on the linear scale 5 The following standards shall apply a The permanent roads , defined as those to be used in excess of one year within the excavation site , shall be surfaced with a dustfree material such as soil cement , bituminous concrete or Portland cement concrete from the nearest public road to the yard area Also , all permanent roads located within 300 feet of residentially zoned land shall be treated the same b Roads other than permanent roads shall be treated with dust inhibitors , to be specified in the operations plan , which will reduce to a minimum the generation of dust from the road surfaces as a result of wind or vehicular action Properly operated water wagons shall be an acceptable method of dust inhibition c Where the proposed extraction shall take place within 300 feet of a dwelling , school , church , hospital , commercial or industrial building , public building , or public land , a security fence at least six feet in height shall be installed d Spoil piles and other accumulations of byproducts shall not be created to a height more than 40 feet above the original contour and shall be so graded that the vertical slope shall not exceed the material’s natural angle of response e The operations plan and the rehabilitation plan shall be coordinated so that the amount of disturbed land is kept to the absolute minimum consonant with good practices and so that rehabilitation proceeds in concert with filling f No land disturbance shall take place within 250 feet of the zoning lot line or the property line where the zoning line and the property line are one and the same g Within the 250 - foot setback area , existing vegetation shall be retained for the purpose of providing a visual screen and noise buffer No disturbance or removal of vegetation shall be permitted except for access roads leading from the excavation area to public roads Where vegetation within the 250 - foot setback does not exist , the applicant shall be required to provide a dense , evergreen buffer consistent with the purpose cited above The buffer shall be in place prior to the initiation of any excavation activities h The applicant shall submit operational reports prepared on an annual basis , detailing the amounts of materials extracted , extent of extractive area , depth of extractive area , and results of groundwater test boring i Annual inspections of the operation shall be conducted by the zoning officer following submittal of the annual operations reports to determine compliance with the provisions of the special use permit j In cases of abandonment or termination of operations for a period of 12 consecutive months , application for a new special use permit is required k For all extractive uses , a performance guarantee shall be submitted to the county in order to ensure that the provisions of the rehabilitation plan are met Such performance guarantee shall be in a form approved by the county attorney The amount of such guarantee shall cover the cost of rehabilitation on a per acre basis , if the cost does not exceed the amount posted with the state If the rehabilitation cost exceeds the amount required by the state , then the difference shall be made up in a bond to the county All changes are listed in bold print Mr Gray reviewed the special use conditions with the Board Mr Gray noted the applicant has requested a reduction in the buffer from 250 ft to 50 ft He stated the ordinance requires the 250 ft buffer ; however , a waiver can be granted if the adjoining property owners agree to the waiver , which has been included in the language for the proposed special conditions Mr Gray reported at this time , the waivers from the adjoining property owners have not been obtained and until such time , the 250 ft buffer would remain in effect Mr Gray stated there are two property owners to the west that would be affected by the buffer At the inquiry of Chairman Wade M Stewart , Mr Gray stated staff has no concerns with the reduction in the buffer , if agreed upon by the adjacent property owners , based on the limited developability of the subject property due to the floodway and the limited access Chairman Stewart asked if there were any further questions by the Board There being no further comments , the Chairman recessed the Special Use Hearing for Case 05 - 15 Decision on Special Use Case 05 - 15 Case 05 - 15 A request has been made to modify the Special Use Permit as follows original permit allows for the operation of sand mine Applicant is requesting that the Special Use Permit be applicable to an additional 2478 acres on the same tract of land Owner D & P Land Applicant Barnhill Contracting Company Rob Barnhill Page1331 April 6 , 2009 – 6 00 pm Continued Based on the following findings of facts and the special use conditions , Commissioner W Ray Woodall moved the Board approve the modification to the special use permit for Case 05 - 15 allowing an additional 2478 acres of the same tract of land to be included in the special use permit for the operation of a sand mine located at the end of Buckleberry Road , in Boon Hill Township Commissioner Allen L Mims , Jr 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 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 Planning and Zoning Department Staff 3 Operation hours Monday – Saturday , 7 00 am – 7 00 pm 4 No signage 5 Obtain all required State permits and adhere to all State regulations 6 Existing vegetation shall remain within the buffer area 7 Approval of written consent from adjacent property owners for the reduction in buffer to 50 ’ If that cannot be agreed upon , the 250 ’ buffer remains in effect 8 Buffering , Setbacks , and Hours of Operation are set by the Johnston County Land Development Code under Section 14 - 257 , as follows see condition # 9 9 Johnston County Code of Ordinances CD14 66 re Mining operations d Extraction of earth products , mining operations Note The removal of top soil and other surface grading activities are exempted from this section 1 A site plan , and or information prepared by a state registered land surveyor , engineer , architect or landscape architect , shall contain the following a Extent of area to be excavated or mined ; b Aerial photograph of site and all areas within 1,000 feet of the perimeter of the property ; c Neighboring land use , road system , natural features and topographical minimum ten - foot contour intervals details ; d A site cross - section showing extent of overburden , extent of sand and gravel deposits , and water table ; e Location of proposed handling and storage areas for overburden , byproduct and excavated materials ; f Location and results of groundwater boring showing depth to groundwater ; g Any areas proposed for ponds or water collection and storage ; h Wind pattern details and on - site windbreaks ; i Soil conditions , soil descriptions and statement addressing agricultural productivity and reclamation ; j Traffic impact analysis addressing the capacity of the roads to serve the site ; k Access roads to the site , as well as on - site roads , with indication of surface treatment to limit dust ; and l Required setback areas , including buildings , landscape screening buffering existing and or proposed If plant materials are to be installed , the number , location , size and type of plants are to be identified 2 An operations plan which shall include a The date proposed to commence operations and their expected duration b Proposed hours and days of operation c Estimated type and volume of extraction d Description of method of operation , including the disposition of topsoil , overburden and byproducts e Methods to control and respond to spillage of extracted materials , overburden or byproducts and vehicular mud on off - site roads f Description of equipment to be used in the extraction process g Methods to prevent pollution of surface water and groundwater h Operational test wells including schedule of results , analysis and response i Compliance with provisions of the state mining program j Depth of extractive operations k Any phasing of the operation and the relationship among the various phases l Operating practices that will be followed to comply with the performance standards applicable to such operation 3 A rehabilitation plan which shall include a A statement of planned rehabilitation of the excavated land , including detailed methods of accomplishment and planned future use of the rehabilitated land ; b A plan of the site showing the final topography , after rehabilitation , to the same scale as the site plan , depicting any water areas and methods of preventing stagnation and pollution thereof , landscaping and ground cover proposed ; c Typical cross - sections showing planned rehabilitation ; d A phasing and timing plan , related to the phasing and timing portion of the operations plan , showing the progression of the rehabilitation and the date when it will be complete ; e The methods of disposing of all equipment , structures , dikes and spoil piles associated with the operations ; and f A copy of the rehabilitation reclamation plan as required by the state mining act where applicable 4 Standards of evaluation The following standards shall be used in evaluating an application Page2332 April 6 , 2009 – 6 00 pm Continued a That the applicant demonstrates that the extractive use operation fulfills primarily a local need as opposed to a regional need in terms of supplying sand and or gravel for building and construction purposes b That all operations associated with extraction shall conform to the following performance standards 1 Direct illumination resulting from the operation shall not fall upon any land not covered by the application 2 Equivalent sound levels at the boundaries of the extraction site shall not exceed the following standards i Between 7 00 am and 7 00 pm , 68dBA ii Between 7 00 pm and 7 00 am , 58dBA c That vibration levels at the boundaries of the extraction site shall not exceed a maximum peak particle velocity – steady state 10 inches second ; and impact of 20 inches second Note The maximum particle velocity shall be the product of two times the frequency in cycles per second times the sum of three mutually perpendicular displacement components recorded simultaneously For purposes of this article , steady state vibrations are vibrations which are continuous , or vibrations in discrete impulses more frequent than 60 per minute Discrete impulses which do not exceed 60 per minute shall be considered impact vibrations Maximum air blast vibration , measured at the lot lines of the zoning lot containing the extractive use , shall be 125 decibels on the linear scale 5 The following standards shall apply a The permanent roads , defined as those to be used in excess of one year within the excavation site , shall be surfaced with a dustfree material such as soil cement , bituminous concrete or Portland cement concrete from the nearest public road to the yard area Also , all permanent roads located within 300 feet of residentially zoned land shall be treated the same b Roads other than permanent roads shall be treated with dust inhibitors , to be specified in the operations plan , which will reduce to a minimum the generation of dust from the road surfaces as a result of wind or vehicular action Properly operated water wagons shall be an acceptable method of dust inhibition c Where the proposed extraction shall take place within 300 feet of a dwelling , school , church , hospital , commercial or industrial building , public building , or public land , a security fence at least six feet in height shall be installed d Spoil piles and other accumulations of byproducts shall not be created to a height more than 40 feet above the original contour and shall be so graded that the vertical slope shall not exceed the material’s natural angle of response e The operations plan and the rehabilitation plan shall be coordinated so that the amount of disturbed land is kept to the absolute minimum consonant with good practices and so that rehabilitation proceeds in concert with filling f No land disturbance shall take place within 250 feet of the zoning lot line or the property line where the zoning line and the property line are one and the same g Within the 250 - foot setback area , existing vegetation shall be retained for the purpose of providing a visual screen and noise buffer No disturbance or removal of vegetation shall be permitted except for access roads leading from the excavation area to public roads Where vegetation within the 250 - foot setback does not exist , the applicant shall be required to provide a dense , evergreen buffer consistent with the purpose cited above The buffer shall be in place prior to the initiation of any excavation activities h The applicant shall submit operational reports prepared on an annual basis , detailing the amounts of materials extracted , extent of extractive area , depth of extractive area , and results of groundwater test boring i Annual inspections of the operation shall be conducted by the zoning officer following submittal of the annual operations reports to determine compliance with the provisions of the special use permit j In cases of abandonment or termination of operations for a period of 12 consecutive months , application for a new special use permit is required k For all extractive uses , a performance guarantee shall be submitted to the county in order to ensure that the provisions of the rehabilitation plan are met Such performance guarantee shall be in a form approved by the county attorney The amount of such guarantee shall cover the cost of rehabilitation on a per acre basis , if the cost does not exceed the amount posted with the state If the rehabilitation cost exceeds the amount required by the state , then the difference shall be made up in a bond to the county The Chairman reopened the Rezoning Hearing for Case 08 - 34 Case 08 - 34 Petition to rezone 4724 acres of two tracts totaling 4924 acres located at 3428 and 3244 NC Hwy 210 in Smithfield Township from Agricultural Residential AR to Industrial 2 - Special Use District I2 - SUD Tax ID 15I09030A , 15I09031 Owner Applicant ST Wooten Corporation Planning Director Berry Gray stated the petition is to rezone 4724 acres of two tracts totaling 4924 acres located at 3428 and 3244 NC Hwy 210 in Smithfield Township from Agricultural Residential to Industrial 2 - Special Use District Mr Gray stated the subject site is directly adjacent to the County Landfill property and a mobile home park is located to the east southeast He also stated there are a few residential properties located in between the proposed operation and NC Hwy 210 Mr Gray noted the special use permit request associatedPage3333 April 6 , 2009 – 6 00 pm Continued with the rezoning He pointed out that the applicant currently has a grandfathered mining operation on site and is requesting to add more land to that operation Gordon Woodruff , Attorney , addressed the Board on behalf of the applicant Mr Woodruff introduced Butch Lawter and Robert Bartlett of ST Wooten Mr Woodruff indicated that at the recommendation of the Planning Board , if approved by the Board of Commissioners , ST Wooten would install a fence to separate the back of the mobile home park from the subject site as well as a gate will be installed and locked when the operation is not in use Mr Woodruff stated the fence and gate would be an improvement as far as safety for the subject site There being no further comments , the Chairman recessed the Rezoning Hearing for Case 08 - 34 Decision on Rezoning Case 08 - 34 Case 08 - 34 Petition to rezone 4724 acres of two tracts totaling 4924 acres located at 3428 and 3244 NC Hwy 210 in Smithfield Township from Agricultural Residential AR to Industrial 2 - Special Use District I2 - SUD Tax ID 15I09030A , 15I09031 Owner Applicant ST Wooten Corporation Commissioner W Ray Woodall moved the Board approve rezoning case 08 - 34 , to rezone 4724 acres of two tracts totaling 4924 acres located at 3428 and 3244 NC Hwy 210 in Smithfield Township from Agricultural Residential to Industrial 2 - Special Use District Commissioner Cookie Pope seconded the motion , which carried by unanimous vote The Chairman reopened the Special Use Hearing for Case 08 - 34 Case 08 - 34 To allow for the expansion of an existing , grandfathered mining facility sand borrow pit Owner Applicant ST Wooten Corporation Those wishing to speak on Special Use Case 08 - 34 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 expansion of an existing grandfathered mining facility sand borrow pit Mr Gray introduced the following summary of evidence into the record A pre - application consultation was held with the applicant for Case 08 - 34 on November 5 , 2008 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 February17 , 2009 , the Johnston County Planning Board held a public hearing regarding Rezoning Special Use Permit Case 08 - 34 and made the following recommendations The motion was made by Mr Browder to approve , seconded by Mr DeLaine with a vote of 7 - 1 Mr Gathers dissenting , th , 2009 the Planning Board recommended preliminary approval of Rezoning Case 08 - 34 at its February 17 The motion was made to approve as stated above with conditions by Mr Schulz , seconded by Mr Edwards with a vote of 5 - 3 with Mr Gathers , DeLaine and Jenkins dissenting , the Planning Board recommended preliminary approval of the Special Use Permit for Case 08 - 34 based on the following Finding of Facts and Special Use Conditions 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 ;Page4334 April 6 , 2009 – 6 00 pm Continued Applicant The existing property has been used as a sand borrow pit by Blackmon Construction for several years There will be no change in operations resulting from this special use application Location and design will not be affected , except for the applicant’s intention to expand the size of the existing sand pit Staff The operation at this site will continue to be permitted by the State of NC The state agency oversees all of the operations at this facility to ensure that it maintains the public health and safety The Boards will also enact special use conditions to promote the general welfare of the community 2 That the use of d