September 8, 2009 - 6:00 PM - County Board of Commissioners Meeting Minutes (Rezoning)

10 532 Meeting of the Johnston County Board of Commissioners September 8 , 2009 6 00 pm The Johnston County Board of Commissioners met in regular session Tuesday , September 8 , 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 NC Stop Torture Now Allyson Caison , 312 North Massey Street , Selma , came forward to address the Board Chairman Wade M Stewart reminded Ms Caison that at the August 3 , 2009 6 00 pm meeting , he had instructed all future comments from representatives of NC Stop Torture Now would wait until the end of the meeting to be heard Chairman Stewart informed Ms Caison that the Board would hear her comments once the rezoning special use cases and all other public hearings for the evening were concluded 2 Public Hearing Rezoning and Special Use Requests Cases 09 - 10 and 09 - 11 Advertised – In The Smithfield Herald – August 26 and September 2 , 2009 Certified letters were mailed to adjoining property owners on August 24 , 2009 Notices were posted at the locations on June 23 , 2009 for Cases 09 - 10 and 09 - 11 The Chairman opened the Rezoning Hearing for Case 09 - 10 Case 09 - 10 Petition to rezone 4267 acres located on NC Hwy 39 in O’Neals Township from Agricultural Residential AR to General Business - Special Use District GB - SUD Tax ID 11M01019B Owner Joe L Wiggins Applicant Jose Ascencio Planning Director Berry Gray stated the petition is to rezone 4267 acres located on NC Hwy 39 in O’Neals 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 subject site is located near the Wake County line and the Five County Stadium Mr Gray stated the surrounding zoning is Agricultural Residential He noted the area is designated as a primary growth area in the Comprehensive Land Use Plan and denotes an area in which high levels of growth pressures currently exist or are anticipated to exist in the near term William Parrish , Parrish Realty Company , 1401 N Arendale Avenue , Zebulon , representing the owner and speaking on behalf of the applicant , offered to answer any questions by the Board Mr Parrish stated Mr Ascencio would comply with the conditions that were suggested to be placed on the property by the Planning Board Commissioner Allen L Mims , Jr noted the Board is presently in the rezoning portion of the hearing and he asked Mr Parrish to explain why the rezoning should take place and or why the rezoning would be a good fit for the area Mr Parrish stated it is his opinion that the proposed use for the subject site is a public need and will compliment the area He stated the use will not be detrimental to the area Mr Parrish requested the Board to approve the rezoning Elaine Williamson , 15074 NC Hwy 39 , Zebulon , stated she lives adjacent to the property Ms Williamson reported the property has been in the family her entire life and it is located in the middle of a residential development where people have lived all their lives Ms Williamson stated there is a natural springPage533 September 8 , 2009 – 6 00 pm Continued in the area along with wells and she is concerned with possible pesticides coming from the proposed nursery , contaminating the water supply Ms Williamson stated she is also concerned over the traffic the use would add to the area on top of the traffic from the stadium She reported there have been two or three accidents in the area within the last six months She stated she feels that the area should be left residential and asked the Board to deny the rezoning She stated if the people in the area wanted to live in a commercial setting , they would move from the area Ms Williamson also noted that the property is being sold by her cousin who has never lived on the land and resides in Florida and has no concerns with what may happen to the property Ms Williamson stated she would have no issues with someone building a home on the site , but she is against the present rezoning request She pointed out the petition in opposition to the rezoning in the agenda packets Commissioner Jeffrey P Carver asked Ms Williamson how she was notified about the rezoning Ms Williamson reported she received a letter from the County notifying her of the rezoning and that her cousin did not contact her in advance Commissioner Tony Braswell asked Ms Williamson if she was aware that the realtor was marketing the property as commercial Ms Williamson responded that she was unaware the property was being advertised for sale as commercial She stated the property was divided by her father and his siblings years ago Ms Williamson stated the subject site is owned by cousins that moved away from the area and have no ties to the land She reported there have been two parcels sold across the road for residential purposes with no issues Mr Gray stated the Planning Board recommended approval of the rezoning request At the inquiry of Commissioner Carver , Mr Gray reported the traffic count in the area in 2007 was 4,000 cars per day and the area was included in the Comprehensive Land Use Plan as a high growth area due to its close proximity to Hwy 64 and the Zebulon jurisdiction There being no further comments , the Chairman recessed the Rezoning Hearing for Case 09 - 10 Decision on Rezoning Case 09 - 10 – Rezoning Denied Case 09 - 10 Petition to rezone 4267 acres located on NC Hwy 39 in O’Neals Township from Agricultural Residential AR to General Business - Special Use District GB - SUD Tax ID 11M01019B Owner Joe L Wiggins Applicant Jose Ascencio Commissioner DeVan Barbour moved the Board deny case 09 - 10 , to rezone 4267 acres located on NC Hwy 39 in O’Neals Township from Agricultural Residential to General Business - Special Use District Commissioner Tony Braswell seconded the motion , which carried by the following vote Ayes Commissioners DeVan Barbour , Tony Braswell , W Ray Woodall , Jeffrey P Carver , and Cookie Pope Nays Commissioners Wade M Stewart and Allen L Mims , Jr The Chairman reopened the Rezoning Hearing for Case 09 - 11 Case 09 - 11 Petition to rezone a 066 acre tract located at 4707 NC Hwy 42 W in Cleveland Township from Agricultural Residential AR to General Business GB Tax ID 06E02005C Owner Applicant Joe Mike Barefoot , Ann K Barefoot Planning Director Berry Gray stated the petition is to rezone a 066 acre tract located at 4707 NC Hwy 42 W in Cleveland Township from Agricultural Residential to General Business Mr Gray noted the property is located in front of the new Wal - Mart ; however , it is not part of the Wal - Mart shopping center Mr Gray stated the 2007 traffic count for the area is 15,000 cars per day He noted the area is designated as a regional center in the Comprehensive Land Use Plan Steven Sanderson , 105 Lake Drive , Wendell , representing the owners , stated the subject site was originally a part of the farmland where the Cracker Barrel now sits as well as the Lowes and the Wal - Mart site He noted in the mid 1990 ’ s , when the rezoning was requested for the majority of the farmland property , there was a house on the subject site that was used as rental property He stated the house has since been removedPage534 September 8 , 2009 – 6 00 pm Continued and the owners now wish to rezone the site to be in compliance with the adjoining property He asked the Board to approve the request and offered to answer any questions Mr Gray stated the Planning Board recommended approval of the rezoning request There being no further comments , the Chairman closed the Rezoning Hearing for Case 09 - 11 Decision on Rezoning Case 09 - 11 Case 09 - 11 Petition to rezone a 066 acre tract located at 4707 NC Hwy 42 W in Cleveland Township from Agricultural Residential AR to General Business GB Tax ID 06E02005C Owner Applicant Joe Mike Barefoot , Ann K Barefoot Commissioner W Ray Woodall moved the Board approve rezoning case 09 - 11 to rezone a 066 acre tract located at 4707 NC Hwy 42 W in Cleveland Township from Agricultural Residential to General Business Commissioner Cookie Pope seconded the motion , which carried by unanimous vote 3 Public Hearing – LDC Amendment § 14 - 177 , 592 , 633 – Subdivision Appeals Advertised – In The Smithfield Herald – August 26 and September 2 , 2009 The Chairman opened the public hearing Planning Director Berry Gray stated presently , the Land Development Code states that appeals either for approvals or denials regarding subdivisions are heard by the Board of Adjustment He stated the proposed revision would send the appeals to Superior Court rather than the Board of Adjustment Mr Gray stated the Planning Board’s decision regarding subdivisions is a final decision ; therefore , Superior Court would be the more appropriate avenue for appeals He noted that appeals can not only be made by the applicant that does not agree with the decision , but also by citizens as well Commissioner DeVan Barbour questioned if a citizen wanted to appeal a decision on a subdivision , would the appeal process be more difficult and costly to go before Superior Court County Attorney Mark Payne stated if the cost of an attorney is factored out , which could be for either the Board of Adjustment or Superior Court , then the cost to appeal to Superior Court is not much different He noted that an individual does not have to hire an attorney to appear in Superior Court and the filing fee is currently 112 whereas the Board of Adjustment fee is presently 250 Mr Payne stated if a person is serious about appealing a decision on a subdivision , he would recommend an attorney in either scenario Mr Gray also pointed out that upon further research by staff , it was discovered that State statutes limit the ability for the Board of Adjustment to hear a subdivision appeal Mr Gray stated staff would like to ensure that the ordinance is in compliance with current statutes Mr Gray reported the Planning Board recommended approval of the proposed revision There being no further comments , the Chairman closed the public hearing Upon a motion by Commissioner Allen L Mims , Jr , seconded by Commissioner Jeffrey P Carver , and carried by unanimous vote , the Board approved the following amendment to the Land Development Code Sec 14 - 177 Appeal of decision The planning boards decision on an application for a preliminary plat approval for a major subdivision may be appealed to the board of adjustment Superior Court under article XI of this chapter Sec 14 - 592 Appeals a Applicability Any decision of the county manager , zoning administrator or other designee , made in the administration of the provisions of this chapter may be appealed to the board of adjustment by any person aggrieved by such decision GS 153A - 345 b authorizes appeals to a board of adjustment An application for appeal shall be filed within 30 days of the filing of the decision being appealed or the delivery of any required written notice of the decision , whichever is later Any decision of the planning board in granting or denying a preliminary plat approval , or a conditional land use permit approval and any decision of the Board of Commissioners may be appealed to the board of adjustment the superior court within 30 days by an action in the nature of a writ of certiorari Any decision of the board of commissioners may be appealed to the superior court within 30 days by an action in the nature of a writ of certiorari GS 153A - 345 b authorizes appeals to a board of adjustment An application for appeal shall be filed within 30 days of the filing of the decision being appealed or the delivery of any required written notice of the decision , whichever is later Sec 14 - 633 Board of AdjustmentPage535 September 8 , 2009 – 6 00 pm Continued d Powers of the board The board of adjustment shall have the following powers 1 To hear and decide appeals from any decision or determination made by the planning director in the performance of his duties in the enforcement of this chapter ; 2 To hear and decide appeals from any decision of the planning board in granting or denying preliminary plat approval or a special use permit ; 3 2 To hear and decide requests for variances from the dimensional regulations of this chapter , in accordance with article X of this chapter ; 4 3 To make interpretations of the zoning atlas , including disputed questions on zoning district boundary lines or lot lines , and similar questions as they arise in the administration of this chapter ; 5 4 To enter , at reasonable times , upon private lands and make examinations or surveys as necessary for the performance of its official duties ; 6 5 To request the board of commissioners to hold public hearings on matters within the purview of the board ; and 7 6 To hear and decide any other matter as required by the provisions of this chapter g Quorum and voting A quorum of the board of adjustment , necessary to take any official action , shall consist of four members The concurring vote of four - fifths of the membership of the board shall be necessary in order to 1 Approve an application for a variance ; 2 Reverse or modify a decision of the planning director , or planning board in the case of applications for appeal ; or 3 Decide in favor of the applicant in any other matter on which the board is required to act by this chapter The concurring vote of a majority of those members present shall be necessary to conduct routine business of the board , to deny applications for variances ; and , in the case of appeals , to affirm the decision of the planning director or planning board 4 Manager Reports and Comments A Counties Required to Provide Space for Probation Personnel The County Manager informed the Board that due to recently passed legislation , it is now the County’s responsibility to provide office space for Probation Personnel Therefore , staff will be exploring various locations and options to comply with the regulations The County Manager noted there would be extra expenses that have not been budgeted involved with the matter B Request for Excise Tax Refund The County Manager presented a request , which was reviewed by the County Attorney , from the Law Office of Vickie I Miller , PLLC requesting a refund in Excise Tax that was inadvertently paid to the Johnston County Register of Deeds Upon a motion by Commissioner W Ray Woodall , seconded by Commissioner Cookie Pope , and carried by unanimous vote , the Board approved a refund of 54600 of overpaid Excise Tax to the requestor 5 Board Reports and Comments A NCACC Hickory Conference Commissioner W Ray Woodall reported that the 2009 Annual North Carolina Association of County Commissioners Conference in Hickory , North Carolina was perhaps one of the best he has attended He noted the information received was very beneficial and he also noted that Governor Perdue mentioned in her speech to the audience , that some of the lottery funds would be returned to the counties B Thank You from Commissioner DeVan Barbour Commissioner DeVan Barbour thanked the Board for all their support recently after the passing of his wife , Kathy Barbour 6 Public Comment continued A Solid Waste Convenience Site Program Concerns Stacey Gerald Johnson , 5872 Cornwallis Road , Garner , stated his concerns regarding the County’s Solid Waste Convenience Site Program Mr Johnson suggested that the current policy could be changed to eliminate the requirement of affixing decals to the vehicle windshield due to possible safety issues Further , Mr Johnson suggested that options be explored to open the convenience sites to all county citizens , just as counties such as Wake , Pender , and Franklin have done Mr Johnson felt that this would eliminate some of the roadside littering PagePage pageNumber5536 September 8 , 2009 – 6 00 pm Continued Commissioner Tony Braswell asked Mr Johnson how the other counties such as Wake and Franklin passed on the cost of the solid waste program Mr Johnson responded that he was unsure how Wake and Franklin Counties handled the cost of their programs ; however , he would be glad to research the information for the Board Commissioner Jeffrey P Carver stated some counties have a fee added on to the tax bill to pay for the solid waste program and if Johnston County were to do the same , it would be approximately one penny added to the overall tax rate He noted that the County currently charges 65 for each decal and if the County were to charge enough to break even , the decal fee would have to be increased to 110 per decal Commissioner Carver indicated that he did not believe citizens would vote to add one penny to the tax bill to pay for the solid waste program to be opened up to everyone Chairman Wade M Stewart stated he appreciated Mr Johnson coming and expressing his feelings to the Board He stated that the Board would keep Mr Johnson’s suggestions in mind and also keep him informed of future discussions and meetings regarding this topic B NC Stop Torture Now Note Commissioners Tony Braswell and W Ray Woodall excused themselves from the meeting Allison Caison , 312 North Massey Street , Selma , NC , informed the Board that she and other representatives of NC Stop Torture Now have been going around the County , speaking to Johnston County citizens and obtaining signatures on a petition requesting the Board of Commissioners to take action in regards to the previous requests of NC Stop Torture Now Ms Caison presented the signed petition to the Board for their review and stated that her group would continue to solicit citizens and provide future petitions Chuck Fager , 223 Hillside Avenue , Fayetteville , NC , updated the Board on various international events that have occurred during the month of August which Mr Fager believes shows accountability for torture Mr Fager provided the Board with a summary that he had prepared of media reports which outline some of the current investigations taking place Chairman Wade M Stewart reminded the representatives from NC Stop Torture Now that concerning repetitive issues , he has the discretion to require such comments to be heard at the end of the meeting John Heuer , 13 Matchwood , Pittsboro , NC , member of the Triangle Chapter of Veterans for Peace and the Director for NC Peace Action , requested that the Board take into consideration the recent articles that NC Stop Torture Now has provided to the Commissioners regarding children and how torture affects them 7 Discussion by the Board Regarding Concerns by Stacey Johnson Chairman Wade M Stewart recognized Tim Broome , Director of Utilities and Engineering for Johnston County , in the audience and asked him for his thoughts on the concerns by Mr Stacey Johnson previously in the meeting Mr Broome stated that with regards to the requirement of the placement of decals on vehicle windshields , he noted that before that policy was adopted , people were sharing decals and the County was losing even more revenue on the program He stated that concerning the cost of the convenience site program , the County has been operating in a deficit for several years Mr Broome informed the Board that he would be glad to discuss all options on the program whenever it is appropriate Mr Broome explained to the Board that to his knowledge , Wake County adds a waste surcharge on the tax bill for each dwelling that supports the solid waste program Commissioner Jeffrey P Carver stated even if the County opened up the landfill one Saturday each month and allowed all citizens to bring their trash for free , he still believed there would be a problem with litter Note Commissioners W Ray Woodall and Tony Braswell rejoined the meeting At the inquiry of Commissioner Allen L Mims , Jr , Mr Broome stated if someone trades vehicles or has an automobile accident , they can bring in the old sticker and the Utilities Department will replace it at no charge PagePage pageNumber6537 September 8 , 2009 – 6 00 pm Continued Chairman Stewart asked what the current policy is on the placement of decals on vehicles Mr Broome stated decals must be placed on the lower right - hand side of the front windshield and staff feels this is an appropriate place Chairman Stewart pointed out that until recently when the law changed , everyone was required to place their inspection sticker on the lower left - hand side of the front vehicle and everyone complied with this law Commissioner Tony Braswell stated that no matter where the County requires the decal to be affixed , there will always be complaints from someone Commissioner Braswell reminded everyone that citizens living in municipalities have their own trash pickup service , which should be taken into consideration if the County were to consider adding a charge to all the tax bills to cover the program Mr Broome stated that approximately 95 of the citizens that participate in the decal program are satisfied He noted that staff is prepared to explore other options , when the Board is ready Commissioner Mims noted that a few years ago , the Board discussed a possible punch card program Commissioner DeVan Barbour stated that in hindsight , the punch card program was probably a better idea than originally thought and perhaps should be revisited There being no further business , Commissioner Jeffrey P Carver moved the Board adjourn Commissioner Allen L Mims , Jr seconded the motion , which carried by unanimous vote The meeting adjourned at 7 00 pm Wade M Stewart , Chairman Paula G Woodard , Clerk to the BoardPage