HomeMy WebLinkAboutApril 17 2007 Regular MinutesIREDELL COUNTY BOARD OF COMMISSIONERS
REGULAR MINUTES
APRIL 17, 2007
The Iredell County Board of Commissioners met in Regular Session on Tuesday,
April 17, 2007, at 7:00 P.M., in the Iredell County Government Center (Commissioners' Meeting
Room), 200 South Center Street, Statesville, NC.
Board Members Present
Chairman Marvin Norman
Vice Chairman Sara Haire Tice
Steve Johnson
Ken Robertson
Godfrey Williams
Staff present: County Manager Joel Mashburn, County Attorney Bill Pope, Deputy
County Manager Susan Blumenstein, Acting Planning Director Steve Warren, Planner William
Allison, Planner Rick Hurley, and Clerk to the Board Jean Moore.
CALL TO ORDER by Chairman Norman
INVOCATION by Commissioner Johnson
PLEDGE OF ALLEGIANCE
ADJUSTMENTS OF THE AGENDA: OTION by Commissioner Johnson to
approve the agenda with the following adjustments:
Addition: •David Swann (Crossroads CEO/Executive Director) will Speak Regarding
the NC Department of Health & Human Services' Rate Reduction
for Community Support Services & as a Result, a Decision by Triumph LLC to
Discontinue Services
Deletions: •Request for Review/Consideration of Information Pertaining to the Status of
Insurance Services Organization (ISO) Inspections of Volunteer Fire Departments
in Iredell County
•Presentation/Request from Representatives of the Shepherds VFD regarding the
FY 07-08 Budget
*Announcement of a County Assembly Day to be held in Raleigh on Wednesday,
May 2, 2007 Sponsored by the North Carolina Association of County
Commissioners
Revision: •Staff Instructed to Send a Letter to the Charlotte Area Transit System (CATS)
Advising that Iredell County was not Interested in Participating in a Project to
Extend Commuter Rail Service to Mount Mourne
Crossroads Behavioral Healthcare Executive Director David Swann Provides an
Update on State Rate Reductions: Swann said Triumph LLC had sent notification of a
decision to discontinue services in the Statesville, Elkin and Mount Airy areas due to Medicaid
rate reductions. Swann said Triumph's decision was based on the state's recent cut from $60.96
an hour to $40. He said approximately 1500 Iredell County residents would be impacted. As
far as future services, Swann said other providers were being identified, and the consumers
would be informed as developments occurred.
PUBLIC HEARINGS
Chairman Norman declared the meeting to be in a public hearing, and Attorney Pope
administered the oaths to all persons desiring to speak in regards to the Proposed Residential
Growth Management System Ordinance for the Brawley School Road Peninsula.
Consideration of an Economic Development Incentive for C & R Racing
Incorporated: Economic Developer Melanie O'Connell Underwood said C & R Racing had
existed in south Iredell for the past three years, and the company now planned to relocate and
expand in the Deerfield Industrial Park. She said the company's investment would be $3 million
and eight to ten new jobs would be created in the first 12 months. Underwood said using the
county's economic development policy, the company would be eligible for a $55,800 incentive.
No one else desired to speak.
OTIO by Commissioner Robertson to grant the $55,800 incentive (over a five-year
period) to C & R Racing based on the $3 million incentive.
VOTING: Ayes — 5; Nays — 0.
Request from Pinnacle Properties, LLC for the Release of Jurisdiction of 0.79 Acres
to the Town of Mooresville (Location: 150 Rocky River Road, Mooresville, NC): Acting
Planning Director Warren reviewed the staff report as follows:
Applicant: Warren Dumford Owners: Mark & Tracy Van Auken
Pinnacle Properties LLC 140 Rocky River Road
801 E. Trade Street, Suite 200 Mooresville, NC 28115
Charlotte, NC 28270
LOCATION: At 150 Rocky River Road in Mooresville, NC, more specifically PIN# 4665-
54-1725. Directions: Highway 115 south, left onto Faith Road, right Shearers Road, left on
Rocky River Road, on right.
REQUESTED ACTION AND CONDITIONS: Release Zoning and Subdivision Jurisdiction
to the Town of Mooresville.
PROPOSED USE: Part of a grocery store anchored Neighborhood Center project, most of
which has already been released.
SIZE: The proposed area to be released is .79 acres.
EXISTING ZONING: The property is currently zoned Residential Agricultural.
EXISTING LAND USE: Residential.
SURROUNDING LAND USE: Residential and proposed commercial development
WATERSHED REGULATIONS: This property is not located in a Watershed.
TRAFFIC: The most recent traffic count (in 2005) indicated 2,500 vehicles per day along this
portion of Rocky River Road.
ZONING HISTORY: This property is currently zoned RA and has been since county -wide
zoning in 1990.
STAFF COMMENTS: This request meets the criteria for a release of zoning and subdivision
jurisdiction. The South Iredell Small Area Plan calls for a neighborhood commercial node at the
intersection of Shearers Road and Rocky River Road to provide opportunities for small-scale,
neighborhood oriented commercial services. The proposed use of the property as part of a grocery
store anchored neighborhood center is consistent with that recommendation. The remainder of the
property to be used for the commercial development was released to the Town of Mooresville on
January 2, 2007. The Town of Mooresville approved the extension of water and sewer service to the
property on December 4, 2006. The applicant is in the process of filing for annexation slated for June
of 2007.
No one else desired to speak
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MOTTO by Commissioner Tice to approve the Pinnacle Properties' request for the
release of jurisdiction of the 0.79 acres to the Town of Mooresville since the Town proposed to
annex the property in two months.
VOTING: Ayes — 5; Nays — 0.
Consideration of a Proposed Residential Growth Management System Ordinance for
the Brawley School Road Peninsula: Acting Planning Director Steve Warren briefly reviewed
this ordinance, and a copy is as follows:
RESIDENTIAL GROWTH MANAGEMENT SYSTEM
1: LEGISLATIVE INTENT
The purposes of this chapter are to:
(a) Establish a residential building permit management system that affixes a short-term rate ofgrowth on the
Brawley School Road peninsula. Fluctuations in that rate will occur on an annual basis;
(b) Establish a residential building permit management system that shares availahle building permits on a
prorated basis;
(c) Provide far a rate ofgrowth on the Brawley School Road peninsula that will assure the preservation of its
unique environment and its high quality of life;
(d) Assure that such growth proceeds in on orderly manner and does not exceed the availability of public
facilities and urban services;
(e) Avoid increased response timer for emergency, servicer (such as fire, .rher�f and EMS) associated with
unmanaged growth. Any, such delay, would endanger lives of residents;
(fi Avoid degradation in air and water quality;
(g) Provide the NC Department of Transportation reasonable opportunity, to widen Brawley School Road.
2: GENERAL PROVISIONS
A system of managing the issuance of residential building permits in the County is established with the following
general provisions:
(a) BUILDING PERMITS
No building permit for the construction of a new dwelling unit may be issued unless applied for in
compliance with this chapter.
(b) ALLOCATIONS NEEDED
One allocation is needed to secure a building permit to construct each dwelling unit, except as
set forth below. The living quarters set forth below shall require:
(1) One-half allocation for an efficiency living unit; and one-sixth allocation or one-eighth allocation for
each occupant for a group care facility or a residential care facility respectively;
(2) One-fifth allocation for accommodations without kitchens or one-third allocation for attached
allocations for congregate care facilities;
(3) One allocation for any other type of dwelling unit;
(4) No allocations are required for a bed and breakfast, a hostel, a hotel, or a motel.
be) ZONING PERMITAPPROVALS
All zoning permit applications will be reviewed within 10 working days after submission of a complete
application. At the end of the application review period, either the application will be entered into a
random selection process for zoning and building review or reasons will be given to the grantee why the
application cannot proceed, in which case the grantee has 5 working days in which to submit all required
corrections, if the corrections are not completed in the time and manner required, the application is void
unless reinstated by the Planning Director upon alluding of excusable neglect.
(d) 60 DAYS TO OBTAIN A BUILDING PERMIT
1f an application is selected during the random .selection process, the applicant can applylor a building
permit with the Iredell County Inspections Department Once a building permit is made available for
issuance, the grantee has 60 days to obtain the permit If the grantee fails to do so, the building permit
application and related allocation is void unless reinstated by the Planning Director upon a finding of
excusable neglect.
(e) CONSTRUCTION AND INSPECTION SCHEDULE FOR A BUILDING PERMIT
Once a building permit is issued, the permittee must adhere to the schedule for construction and inspection
set forth in the North Carolina State Building Code, as adopted under Iredell County Code of Ordinances,
Chapter 4-56, unless compliance with a shorter schedule is required by the Board of Commissioners under
Subsection 7(b). If a building permit expires or is terminated under the provisions of the North Carolina
State Building Code, the related allocation is void.
3: ALLOCATIONSAVAILABLE
(a) TOTAL UNADJUSTED ALLOCATIONS
The unadjusted number of allocations per year available through 2010 shall be as follows in
TABLE I. TOTAL UNADJUSTED ALLOCATIONS
Annual Allocations
2007100
2008100
2009100
2010100
(b) ALLOCATIONS COUNTED
All building permits issued for the construction of a new dwelling unit shall he counted against the
allocations available.
(c) ADJUSTMENT OF ALLOCATIONS FOR NEXT CALENDAR YEAR
The number of allocations available for the next calendar year shall be adjusted at the end of each year by
the,followingfietor, if applicable.
(I) By adding the number of allocations available but not granted in prior calendar year, up to a total of
25 percent of the current year's unadjusted allocations, and adding them to the current year's
unadjusted allocations. All other allocations available but not granted during such prior year shall be
void.
(d) ADJUSTMENT OF ALLOCATIONS FOR NEXT ALLOCATION MONTH
The number of allocations available pursuant to Subsection 3(a), `Total Unadjusted Allocations, ",for the
next monthly period shall be adjusted at the end of each monthly period by the adding the number of
allocations available but not granted to the current month's unadjusted allocations after allowing for the
followingfactor, ifapplicable:
(1) By subtracting the number of allocations required to round allocations under Subsection 6(a),
"Rounding Rule. "
(e) MAXIMUM ANNUAL ALLOCATIONS
Notwithstanding any other provision of this chapter to the contrary, the total number of allocations granted
by the Board of Commissioners during a calendar year shall not exceed the unadjusted allocation number
set forth in Subsection 3(a), "Total Unadjusted Allocations.
4: ALLOCATION SCHEDULE
(a) REVIEW OFAPPLICA TION
Review of applications for allocations shall occur monthly. Deadlines, for applications and
allocation shall be set by regulation of the Board of County Commissioners
(b) MONTHLYALLOCATIONS
One-twelveth of the allocations available in each calendar year are available in each allocation period,
unless such number is modified subject to the following criteria:
(1) At any time, for good cause, at a public hearing held upon reasonable notice to the public by the
Board ofCounty Commissioners; or
(2) At the time of granting allocations, in order to round allocations under Subseclion 6(a), by an action
of the Planning Director; or
(3) At the time of granting allocations, in order to add up to one allocation to any development which
needs one additional allocation to commence construction, after a hearing held by the Board of
County Commissioners except for the notice provisions thereof, or
(4) At the 13 oh month in which an applicant for an allocation has not been drawn or otherwise selected for
an allocation in accordance to the procedures set out by this ordinance, such application shall be
automatically granted one allocation for each valid application. The application must have
participated in the random selection process jor each of the preceding twelve months.
(c) ADMINISTRATIVE PROCEDURES
An applicant,for an allocation shall apply in accordance with the administrative procedures established by
the Planning Director and the Board of County Commissioners. No application shall be made unless the
land for which the allocation is requested meets all the requirements of this chapter and any other
ordinance of the County on or before the last day,for submitting applications, including, without limitation,
zoning or rezoning ordinance, or approval of a final subdivision plat, or a site review or planned unit
development that does not require a subdivision, pursuant to this title. In addition, any appeals initiated
before the Board of Adjustment must be determined at least 21 days before the allocation grant. The
applicant is responsible for meeting such deadlines.
5: APPLICATION
(a) APPLICATION REQUIREMENTS
An applicant for an allocation shall apply on a form provided by the Planning Director and provide,
without limitation, thefollowing information:
(I) The number of allocations requested;
(2) The total number ofdwellhng units within the development;
(3) Parcel Identification Number (PIN) from the lredell County Tax Office
(4) For uses by right, a site plan suitable for a building permit application, and
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(5) Other documentation and information which the Planning Director may require in order to review the
application and apply the standards and obtain compliance with the intent and purposes of this
chapter.
(b) ONE APPLICATION PER MONTHYALLOCA TION PERIOD
An applicant shall not file more than one application for any particular parcel during any monthly
allocation period.
(c) MAXIMUM ALLOCATIONS
In any monthly period, an applicant may apply for one allocation for each parcel that has not received an
outstanding building permit or allocation. However, f the total number of allocations fi-om all applicants
in a monthly period exceeds the number of allocations available, the Planning Director shall, after the
random selection process is held, recalculate each applicant's request such that no single applicant
receives more than 20 percent of available allocations for the period.
(d) PLANNING DIRECTOR REVIEW OF APPLICATIONS
The Planning Director will review applications in order- to determine whether they meet the requirements
of this code and other ordinances of the County, including, without limitation, the Iredell County Land Use
Plan and the Brawley School Road Small Area Plan. If an application does not meet such requirements, it
will be returned to the applicant with a written notice of the deficiencies. The applicant has five days from
the date of receipt of such a notice in which to correct the application or appeal to the Board of Adjustment
pursuant to the provisions of a public hearing, except for the notice provisions thereof or to revise the
application for reconsideration during that allocation period. Acceptance of an application or approval of
an allocation does not constitute a finding by Planning Director, Board of Adjustment, or the Board of
County Commissioners that the development meets the requirements of this chapter or other ordinances of
the County.
(e) ALTERATIONS TO APPLICATIONS PROHIBITED
An applicant may not alter its submitted application after the application deadline for the month in which
such application is made.
(� MODIFICATION OF PLANS
No person shall modify the building permit application that accompanies an awarded allocation, except as
follows:
(I) The applicant may, modify- a building permit application, substitute a plan, or move the building permit
application firom one lot to another lot within a development during the month that the allocation was
awarded.
(2) The Planning Director may request the applicant to correct a zoning permit application at any time
prior to the issuance of a building permit notwithstanding the limitations set forth in paragraph (f)(1)
above. The applicant shall have 10 days, after the receipt of a written deficiency notice, to revise the
application. Ifthe applicantfails to respond within the ten days, the allocation shall expire.
6: CALCULATION AND AWARD OFALLOCA TIONS
(a) ROUNDING RULE
Allocations will be rounded up ifthe prorated grant is 0.5 or greater.
(b) AWARD OF ALLOCATIONS
Unless modified by regulation of the Board of County Commissioners, the procedure for awarding
allocations will be as follows for each allocation period:
(1) A complete application will be submitted to the Planning Director for review, of compliance with this
ordinance Subsection 4(a), an incomplete application will be denied and returned as indicated under
Subsection 5(d).
(2) A random selection process will be held to determine which parcels receive zoning permits and are
eligible for a building permit.
(3) The Board of Adjustment will hear any appeals from applicants concerning compliance with the
requirements of Subsection 5(d). Such appeals shall be held pursuant to the provisions of a quasi-
judicial hearings, except for the notice provisions thereof.
(4) The Board of Commissioners may find that more than one development exists for the purposes of this
chapter where contiguous parcels of land have been combined to produce a unified development plan
ifan improved land use design is achieved by such combination.
(c) BUILDING PERMITS FOR ALLOCATIONS
For each allocation period, the number of building permit allocations to be awarded will be based upon a
random selection to determine which allocation requests are granted.
(d) GRANT OF ALLOCATIONS IF FEWER THAN TOTAL ARE REQUESTED
in the event that fewer- allocations are requested than are available during any monthly period, the
Planning Director will grant all allocations requested, subject to the restrictions of Subsection 5.
7: CONDITIONS OF APPROVAL
(a) LENGTH OFALLOCATIONVALIDITY
Allocations are valid for a total of two month period. The first allocation period shall he the month in
which the allocation is granted. The second allocation period shall he the next month after which the
allocation is granted. Once the grantee of an allocation receives a building permit, the grantee shall
comply, with the construction schedide prescribed by Subsection 2(e).
(b) BOARD OF COUNTY COMMISSIONERS CONDITIONS
For good cause, the Board of Commissioners may, impose terms and conditions on the grant of any
allocation including, without limitation, modification of the time period set forth in Subsection 7(a) of this
ordinance.
(c) ALLOCATIONS GRANTED TO A SPECIFIC APPLICANT
Each allocation shall be granted to a specific applicant and shall indicate such development and site of
work. Any assignee of any allocation is subject to the terms and conditions under which the original
allocation was granted.
(d) BOARD OF COMMISSIONERS ACTION
The Board of Commissioners may take action pursuant to Subsection 7(e) of this section upon a finding
that:
(1) The grantee failed to comply with the terms and conditions of an allocation's approval, including,
without limitation, all provisions of this code and other ordinances of the county;
(2) The grantee .surrendered an allocation substantially later than it knew or should have known in good
faith that it would not be needed, or
(3) The grantee could not reasonably have anticipated using the number of allocations applied for.
(e) BOARD OF COMMISSIONERS HEARING AND SANCTIONS
At any time, after a public hearing held pursuant to the provisions for a quasi-judicial hearings, except for
the notice provisions thereof, the Board of Commissioners may impose for violation of Subsection 7(d) of
this Section any or all of the following sanctions:
(1) Void any, allocation;
(2) Revoke the building permit,for any dwelling unit as to which the allocation is voided,
(3) Suspend a grantee's and a grantee's assignee's privilege to apply for any allocation or building permit
for a period of up to eighteen months.
(fi ALLOCATIONS SURRENDERED OR VOIDED
if a grantee surrenders an allocation or allows an allocation to become void, that number of allocations
shall he held until the last two calendar- months for .selection as pursuant to Subsection 6 if a building
permit has not been obtained.
(g) FAILURE TO USE ALLOCATIONS
lf, in two out of any four consecutive monthly periods, a grantee of an allocation or allocations in a
development surrenders an allocation or a building permit or allows an allocation or a building permit to
become void, then the grantee may, not reapply for any allocation in that development for three consecutive
allocation periods, unless permitted by the Board of Adjustment upon a finding of extreme hardship at a
hearing held upon reasonable notice to the public prior to the relevant application deadline. The
provisions far a quasi-judicial hearings, shall apply to such hearing, axcept for the notice provisions
thereof.
(h) ALLOCATIONS GRANTED BY BOARD OF COMMISSIONERS
The Board of Commissioners may allocate exemptions to applicants in the category set forth below. Such
allocations will be counted against the total allocations available set forth in Section 3, "Allocations
Available. " The Board of Commissioners will grant such allocations upon finding good cause, after
reasonable notice to the public and a public hearing and upon such conditions as it may prescribe for the
following types ofdwelling units:
(1) Dwelling units for which a valid building permit has expired but construction has already, commenced
prior to the enactment of this ordinance.
8: REGULATIONS
The Board of Commissioners is authorized to adopt regulations to implement the provisions of this chapter.
9: MONITORING AND EVALUA TION
The Iredell Countv Board of Commissioners shall receive an annual update on the progress for the construction and
widening of Brawlev School Road The report shall include the total number of applications for allocations, the
number of building permit allocations granted and exemptions granted The Board of Commissioners may from
time to time, request a status update as to the current building permit allocation program. The Board of
Commissioners will evaluate the information presented as to the effectiveness of this ordinance. However, in no
case will this ordinance be extended beyond December 31, 2010 without a public hearing held by the Iredell County
Board of Commissioners to determine the necessary facts to ensure the health, solely, and welfare of the citizens of
Iredell County.
10: DEFINITIONS
Terms defined in the Iredell County Zoning Ordinance, Article XIX shall apply to this ordinance unless farther
defined.
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Allocation means an approval required as it condition precedent to obtaining a building permit for each dwelling
unit in it development.
Allocation period means a review period, one month in duration, commencing on the first day, on which
applications may be accepted for such allocation period and ending on the day preceding the first day of the next
allocation period.
Applicant means the individuals, partnerships, corporations, trusts and other legal entities in which the applicant of
record holds a legal or henefcial ownership of greater than one percent.
Building permit for the purpose of this chapter, it is assumed that an individual building permit is issued for each
dwelling unit, but applies onty to building permits for new residential dwelling units.
Development means the entire plan to construct or place one or more dwelling units on a particular parcel or
contiguous parcel of land within the county including, without limitation, a planned unit development, site review,
or subdivision approval.
Dwelling unit means an enclosure of one or more rooms providing complete independent living facilities for one
family, including permanent facilities for living, sleeping, eating, cooking and sanitation within the separate
enclosure.
Excess allocation means an allocation that is not awarded by the random selection process or the Board of
Commissioners.
Grantee means an applicant which is granted an allocation.
Planning Director means the planning director of the Iredell County Planning Department or his/her designee.
Warren said the ordinance would not apply to the territory governed by the Town of
Mooresville.
Testimony was then provided by Lake Norman Volunteer Fire Department Deputy Chief
Kevin Clark, Emergency Management & Communications Director David Martin, County
Planner William Allison, Acting Planning Director Steve Warren, and Iredell-Statesville Schools
Director of Maintenance Dr. Kenny Miller regarding the following findings of fact.
FINDINGS OF FACT
I. Brawley Peninsula is the name used to refer to a peninsula of land that projects in a
southwesterly direction from Williamson Road into Lake Norman in Iredell County,
North Carolina.
2. Brawley Peninsula is located in Davidson Township in Iredell County, North
Carolina.
3. Brawley School Road is the only road into and out of'Brawley Peninsula.
4. Brawley School Road runs from US21 through an intersection with Williamson Road
out the Brawley Peninsula and dead ends at Lake Norman.
5. Located along Brawley School Road is Brawley Middle School, Lake Norman
Elementary School, Woodland Heights Elementary School, Lake Norman Volunteer
Fire Department and a satellite office for the Iredell County Sheriffs Department.
6. Brawley Peninsula is located in Davidson Township in Iredell County and is a highly
developed area.
7. Davidson Township and Coddle Creek Township (which is adjacent to Davidson
Township) both are considered affluent areas. Affluent households tend to generate
more daily automotive trips than households located in less affluent areas. In South
Iredell County 52% of the households earn in excess (?/'$100,000 per year. In
Davidson Township (including the Brawley Peninsula area) the average cost of'a new
home is $532,000 and the average cost of a used home is $448,000 versus just
$253, 000 and $192, 000 respectively in the adjacent Coddle Creek Township.
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8. Brawley School Road was originally a farm -to -market road which existed prior to the
construction of Lake Norman and the development of the Brawley Peninsula. Except
in the areas where it has been improved, Brawley School Road is approximately 18
feet in width.
9. According to NCDOT engineering reference documents, Brawley School Road has a
safe design capacity of 9000 vehicles per day.
10. On weekdays, traff c along portions of Brawley School Road is approximately 25, 000
cars per day. Approximately 86% of the traffic on Brawley School Road occurs
during the business part of the day with traffic at certain peak times approaching
2, 000 cars per hour.
11. Each new additional household constructed in Iredell County produces on average
9.6 trips per day.
12. The North Carolina Department of Transportation (NCDOT) has undertaken a major
widening and improvement of Brawley School Road including making it four lanes in
width (2 lanes in each direction) from 1-77 to a point near Chuckwood Road.
13. NCDOT is in the process of completing right -of --way acquisition from Williamson
Road to Chuckwood Road and is in the process of right-of-way acquisition for the
portion of Brawley School Road from I-77 to Williamson Road.
14. NCDOT anticipates awarding construction contracts for the improvements to
Brawley School Road by the end of August of 2008.
15. NCDOT anticipates completion of the improvements to Brawley School Road within 3
years of commencement.
16. Iredell County, through its Planning Department, has heretofore approved for
development, hundreds of residential lots on Brawley Peninsula.
17. There remain undeveloped on Brawley Peninsula approximately 584 acres.
18. At the present time traffic on Brawley School Road is such that a safety hazard exists
during certain hours of the day.
19. The Brawley Peninsula is located near McGuire Nuclear Power Plant. In the event
of a disaster at McGuire Nuclear Power Plant. There is only one way to evacuate
Brawley Peninsula and that is out Brawley School Road. Lake Norman Volunteer
Fire Department projects it would take 24 hours to evacuate Brawley Peninsula.
20. In the event of a fire or casualty out Brawley Peninsula, there is only one route to get
rescue personnel in to the affected area and injured personnel out and that is Brawley
School Road.
21. Continuing to add traffic to Brawley School Road prior to the completion of the
planned improvements could further compromise public safety.
22. Completion of the contemplated improvements to Brawley School Road will
substantially alleviate the congestion problems and the public safety concerns.
23. New homes generate on the average 0.32 school students. Each new home
constructed will not only add to the general congestion on Brawley School Road, but
will compound congestion at peaks traffic times and compound the public safety
concerns.
24. Construction of new homes directly correlates to the issuance of Building Permits.
25. Many lots heretofore approved by Iredell County are owned by persons or entities
having vested rights to develop the same. Development of those lots will compound
the pressures on Brawley School Road and the public safety concerns of Iredell
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County. The Iredell Planning Department estimates there are 1115 vacant lots on the
Brawley Peninsula.
26. The population of Brawley Peninsula now exceeds 18,000 with approximately 350
new homes in the planning stage. The population of Brawley Peninsula will shortly
exceed 20, 000.
27. The lots on Brawley Peninsula are for the most part dependent on well water. In
periods of dry weather many of the lots are experiencing supply problems. Out of
approximately 80 community wells drilled only 27 produced water. In some areas
existing wells have began to experience low flow.
28. While Brawley Peninsula is served by a newly ungraded volunteer fire department,
there are growing problems of manpower and staffing. Lake Norman Volunteer Fire
Department experienced 50% more calls in the first five months (?1'2006 than it did in
all of 2005.
29. The Sheriffs Department is experiencing increased calls as a result of increased
crime rate on Brawley Peninsula and a delay in response time.
30. Fire and rescue units have been impeded by the narrow roads on Brawley Peninsula.
Traffic congestion delays movement of emergency vehicles.
31. Lake Norman area school population increased by an average of 44% between 2002
and 2006.
32. For each 700 to 1000 additional children in an area, a new school is required.
Elementary schools cost at least $13,000,000 each, middle schools at least
$18, 000, 000 and high schools at least $32, 000, 000.
33. 500 to 700 additional students per year means spending at least $63, 000, 000 in South
Iredell alone everyfour to five years just for school construction.
34. The Iredell County Planning Office recorded on the Brawley Peninsula 167 new lots
in the year 2001, 109 new lots in the year 2002, 260 new lots in the year 2003, 259
new lots in 2004, 90 new lots in 2005, and 181 new lots in the year 2006.
35. Over 1000 new homes have been built on the Peninsula in the past four years or a
230% increase in the number of homes. Over 350 more homes are in the planning
stage at the current time. Each new home is projected to add 9.6 trips per day to
Brawley School Road.
36. The most viable means of controlling the rate of growth is to control the rate of
issuance of Building Permits. In 2004 Iredell County issued 317 Building Permits for
new homes in Brawley School Peninsula, in 2005 it issued 392 and in 2006 it issued
272.
37. The South Iredell census tracks show a population growth increase from 1994 to
1999 of from approximately 22% to approximately 131% whereas areas that were
outside of these communities had a projected growth rate of 2.3% per year.
38. In 1993 NCDOT projected 2005 traffic counts on Brawley School Road would be
7,600 per day by 2005. Actual 2005 traffic is approximately 25,000 per day. Annual
Average Daily Trac (AADT) volume is a measure of traffic volume for all lanes in
both directions. AADT for Brawley School Peninsula in 1995 was 10,000, for 1997
was 15,200, for 1998 was 18,000, for 2001 was 22,000, for 2003 was 20,000 and for
2005 was 24, 000.
39. Traffic on Brawley School Road will be impacted by the contemplated construction
and improvements. Brawley Peninsula could be compromised by such activity, as
will the ability to evacuate Brawley Peninsula.
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40. Since each new home yields an average 9.6 automobile trips per day (see Finding
Number 11) 150 new homes on Brawley Peninsula would increase traffic on Brawley
School Road by an additional 1440 trips per day. 120 new homes would result in
1152 additional daily trips and 100 new homes would increase daily traffic by 960
trips.
41. A growth rate in daily traffic (?1'4% per annum is approximately 1000 trips per day
over current traffic.
42. A growth rate in excess of 1000 trips per day is not manageable and is more than the
infrastructure can support and will ultimately lead to a breakdown in the
government's ability to provide services to the area. A growth rate of 100 new homes
per annum will yield less than 1000 new daily trips and can be managed.
43. The growth rate in the Brawley Peninsula affects the County's ability to provide
services in many areas each of which is directly dependent upon the filet that the
Peninsula is served by one Primary road and that road is inadequate to handle
existing traff c and cannot accept much additional traffic without severe compromise
of the County's ability to provide services and without compromise of the public
safety and welfare.
44. It is in the interest of the public safety and the welfare of the citizens of Brawley
Peninsula that the growth on Brawley School Road at Brawley Peninsula be slowed
to the maximum extent possible pending the completion of the contemplated
improvements to Brawley School Road by NCDOT.
45. Experts have recommended to Iredell County and the Iredell County Board of
Commissioners finds as a fact that the issuance of more than 100 Building Permits
per annum pending the completion of the contemplated improvements to Brawley
School Road by the NCDOT will be more than the infrastructure can support and will
jeopardize the County's ability to provide rescue, fire and emergency services during
critical times. A growth rate in excess of 100 new homes per year will compromise
public safety and welfare.
46. The Iredell County Planning staff has been directed to prepare an ordinance limiting
the number of Building Permits issued on Brawley Peninsula to a maximum of 100
per year with the same to be issued in an as fair and equitable manner as is permitted
under the circumstances.
NOW, THEREFORE, in consideration of the foregoing Findings of Fact, the Iredell County
Board of Commissioners makes the following:
CONCLUSIONS
1. Iredell County possesses the police power to regulate activities affecting the general
health and welfare of its citizens.
2. Controlling the issuance of Building Permits is reasonably related to the
government's ability to provide services in the Brawley Peninsula area of Iredell
County.
3. The public safety and the government's ability to provide services will be
compromised by the issuance of building permits in excess of 100 per year on
Brawley Peninsula until such time as the contemplated improvements to Brawley
School Road have been completed.
4. It is in the interest of the citizens of Brawley Peninsula that the no more than 100
building permits be issued annually until the contemplated improvements to Brawley
School Road are completed.
5. The duration of the limitations and the manner in which they are imposed hereby is
reasonable and is no more than is necessary to accomplish the intended result of
10
protecting the public safety and promoting the general health and welfare of the
citizens of Brawley Peninsula.
6. The adoption of an ordinance limiting the number of building permits to 100 per year
on Brawley Peninsula is reasonable and fair and is a just means of promoting the
public safety and general welfare of the citizens on Brawley Peninsula.
*****
Kevin Clark said a safety hazard existed on the road at certain hours of the day. He said
at times, three different entities (EMS, sheriff, and fire department) had to respond to ensure that
an ambulance could arrive and depart.
David Martin said the Office of Emergency Management had the responsibility to
mitigate and prepare an emergency response plan which was submitted to the board of
commissioners. Martin said the department's primary goal was the safety of the county's
citizens. He also distributed a seven -page handout that detailed an evacuation plan for the
peninsula's residents.
Dr. Kenny Miller, with the Iredell-Statesville Schools, presented the following
information regarding the schools along the Brawley School Road corridor:
School
Capacity vs.
Year
Start/End
Buses
2007
2008
2009
2010
2011
(Current
Opened
Time
Serving
Projected
Projected
Projected
Projected
Projected
Enrollment)
Woodland
800(950)
2006
7:40-2:10
16
970
1007
1044
1081
1118
Heights
CakeNonnan
700(750)
1992
7:40-2:10
13
782
812
841
871
901
Elem.
Brawley Middle
900 (1053)
New
8:15-3:15
*3
1090
1132
1173
1215
1256
sec2006
Schools impacting
Brawley because of school attendance zones:
Lake Norman
1800(1763)
New
8:27-3:05
*Share
1906
1978
2051
2123
2196
High
sec.
2006
Mt. Mourne
600 (622)
New
7:35-2:05
649
673
698
723
748
Elem.
sec.
1998
Notes:
• *Buses at the four schools above are paired. This means they run 2 routes each morning and 2
routes each afternoon. This is a total of 128 routes per day; much of it along the Brawley School
Road Corridor.
• Typically, about 50% of students ride the bus and the other 50% arrive/dismiss by private vehicle.
• Projections are for approved lots only as of January 1, 2007. These projections are conservative,
at best, and will go up as new permits are approved.
• Additional buses will be assigned based on growth. Usually, an additional bus is added per 72
elementary students or 46 middle/high school students.
• Presbyterian Road School will not open until the fall of 2009, and even with redistricting, it will
not greatly impact the Brawley School Road traffic.
• Lake Norman High's current enrollment is misleading because some students have dropped out or
are in transition. Lake Norman has 158 students more than this time last year. The numbers fall
off later in the year only to rebound at the beginning of school.
• A new school is planned when the projected growth exceeds capacity in a geographic area by 400
or more students.
• Costs of a new school vary depending on the capacity and type (elementary, middle or high). The
range is between $130 to $160 a sq. ft.
• Growth projections are based on a conservative multiplier of .32 students per residence. This
multiplier is based on national and local historical data on student populations.
Key Points:
1. Growth drives the building of new schools to house the students. New schools require
additional resources for the building, staffing, operating and maintaining.
2. Increasing the number of schools will create more traffic density at the times school is in session.
3. Schools would be hard pressed to orderly and quickly evacuate in an emergency. Access
and egress to Woodland Heights and Lake Norman Elementary by buses and cars would be
almost impossible.
4. New road construction along the corridor will magnify the traffic problem for the schools. Access
and egress will be limited at best.
Schools respond to the growth in an area, they do not necessarily create it, but new schools
encourage people to move into the area or return from charter/private school settings.)
---------------End of Dr. Miller's Handout ---------------
Comments from the Public
V c Theobal ds ( opposi t i on) voi ced concer ns about t he i rrpact t he
or di nance woul d have on busi nesses provi di ng servi ces and goods for
t he const r uct i on i ndust r y as wel I as t he busi nesses ( CPAs, at t or neys,
secur i t y, insurance, pr i nt i ng of f i ces) providing services t o
honeowner s and of her con rer ci al / i ndust r i al businesses. Fie sai d hi s
I urrber busi ness brought i n $1 rri I I i on i n sal es taxes I ast year.
Deborah Bowen ( opposi t i on)
Iirri t the
st udent s.
pr i vi I ege -
weekends or
nunber of personal
She said high school
not a right . Bowen
spring break.
suggested t hat the school syst errs
vehi cl es being used to t r anspor t
st udent s shoul d r eal i ze dr i vi ng was a
said there was not a traffic issue on
Len Beal er ( opposi t i on) sai d t he cap was based on t r of f i c and t he
congest i on occur r ed on a 3. 4 rri I e ar ea st ar t i ng ar ound Chuckwood Road
and pr oceedi ng to t he Br awl ey School Road. He sai d f i ndi ngs of fact
#s 10 and 38 rent i oned 25, 000 car s a day on t he r oad, and #26 sai d
t her a wer a 18, 000 r esi dent s at 2. 4 per househol d whi ch equal ed 7500
households. He sai d t hat vii t h t hi s rrany househol ds, at 9.6 t r i ps,
t here woul d be an i ndi cat i on t hat 72, 000 vehi cl es war a on t he road,
rather than the f i ndi ngs of fact arrount of 25, 000 vehi cl es. Fie sai d
t here needed t o be a conpr oni se on t he bui I di ng cap.
Br i an Robi net t e ( opposi t i on) sai d he wasn' t awar e of any st at ut e
t hat al I owed t he count y t o aut hot i ze t he or di nance. He sai d " pol i ce
power was a t hi n t hr ead t o be usi ng on such a dr ast i c pr ogr am t hat
curtailed the property rights of I andowner s. " Robi net t e sai d 100
per rri t s woul d not neet t he demand, and t hi s woul d devel op i nt o a
" def act o nor at or i urd' t hat was i n vi of at i on of G S. 153-340. He sai d
t he r eal pr obl em t hat needed t o be addr essed was t r of f i c.
Lee East er ( opposi t i on) st r essed t he i rrpor t ance of I et t i ng t he
I egi sl at or s know about t he need f or bet t er roads i ncl udi ng t he
i nt er st at es. Fie sai d r oad and gas t axes wer a goi ng t o of her par t s of
t he st at e.
G en Li nderrann ( advocat e) sai d t he r esi dent s' saf at y shout d be
considered. Fie sai d t he school s ware al ready crowded and woul d onl y
get wor se i f gr ow: h vvasn' t sl owed. Li nderran rrent i oned of her pr obl errs
and concerns such as ( 1) t r ai I er conpl exes al r eady at new school s ( 2)
updat ed evacuat i on r out es wer a needed ( 3) speedy access/ egress f or
errer gency r escue per sonnel was needed ( 4) t he saf et y of dr i nki ng wat er
needed t o be consi der ed and ( 5) Depar t rent of Tr anspor t at i on f undi ng
needed t o be di r ect ed t o t he at ea and I ocal or gani zat i ons and ci t i zens
needed to contact their representatives. Li nderrann sai d he under st ood
an anendnent ni ght be approved that woul d exempt approxi natel y 1500
1 of s owned by Cr escent Resour ces and of her I ar ge devel oper s. Flo sai d
t hi s woul d post pone t he i npl errent at i on of t he or di nance f or 15 years.
Fie ur ged t he boar d nenber s t o vot a agai nst any arrendrrent s.
Ski p VIbber ( advocat e) sai d t he or di nance was not a rror at or i um
and i t woul d al I ow devel opers t o cont i nue t hei r busi nesses -- j ust at
a sl ower rat e. ". Veber rrent i oned t he horrebui I der s' comrent s, pl us
t he comrent s of of hers i n opposi t i on, and di sput ed t hei r pr edi ct i ons
as f of I ows:
12
1. An Econorri c Har dshi p/ Loss of Jobs/ Possi bl e Bankr upci es f or
Horrebui I der s: fiber sai d all const r uct i on wasn' t bei ng curt ai I ed.
The or di nance wasn' t a rror at or i um and t he bui I di ng cap rreasur a onl y
I i ni t ed r esi dent i al grow: h unt i I infrastructure caught up.
2. Econorri c Hardshi p on Support i ng Busi nesses: Vtber said t hi s
referred to bui I di ng rrat er i al suppl i er s/ subcont r act or s. He sai d t hi s
pr edi ct i on woul d suggest t hese busi nesses I i ni t ed t hei r product s t o
t he peni nsul a excl usi vel y, whi ch was unl i kel y.
3. Econorri c Hardshi p on Local Servi ce Busi nesses: He sai d t hi s
r of er r ed t o gas st at i ons and r est aur ant s. N6ber sai d const r uct ion
i ndi vi dual s usual I y f r equent ed t hese f aci I i t i es and t hen moved on t o
anot her I ocat i on. He sai d, however, t hey I of t behi nd r esi dent s t o
fill the void.
4. Enact rrent woul d Resul t i n a Loss of Count y Revenue f r om t he Hones
not Bui I t: fiber sai d i t was nor e I i kel y t hat t he econom c i nvest rrent
woul d i ncr ease as di f f er ent oppor t uni t i es war a pursued and spread out
i n di f f er ent areas of t he county. He said growth would st i I I occur in
the county because the "drivers" were out si de t he count y.
5. Enact rrent woul d Nhke i t Di f f i cul t f or I nvest rrent Property Ohner s
to Sell at Proper Nhr ket Value: Vtber said this prediction night have
sone rrer i t , but the cur r ent r esi dent s' publ i c outcry about t he
unrestrained growth was rraki ng rrany pot ent i al buyers t o look
el sewher e.
6. Enact rrent of t he Cr di nance woul d Nhke i t Di f f i cul t to Attract New
Industry: He sai d cor por at e Arrer i ca had I ear ned rruch i n t he past , and
one lesson learned was t hat , " Fai I i ng to plan is pl anni ng to f ai I . "
( Not e: Li nderrann and V`6ber spoke f or t he Gr owt h Nhnagerrent
ComTi ssi on, and as such, t hei r comrent s war a on behal f of a I ar ge
group of peopl e i n t he audi ence. )
R ck Howard (opposi ti on) sai d the rrar ket pl ace woul d take care of
t he or obl em Howar d sai d t he congest i on occur r ed at " peak t i rres" and
I aw enf or cerrent of f i cer s coul d assi st by directing traffic. Fie sai d
t he area was payi ng t he count y t ax bi I I and questioned wkly anyone
woul d want t o st op t he " econom c engi ne. " Nt . Howar d conpar ed t he
bui I di ng cap I of t ery t o one t hat woul d requi re t he narres of peni nsul a
r esi dent s t o be pl aced i n a I oft ery f or t he purpose of choosi ng 100 of
t hem who woul d be t of d t o rove away f r om t he peni nsul a. Howard sai d
t he I at t er was n' t a sol ut i on, and nei t her was t he or di nance.
Rob Col I i er ( opposi t i on) sai d t he bui I der s and devel oper s di d not
cr eat e t he si t uat i on, rat her t hese peopl a and corrpani es responded t o a
derrand f r om horrebuyer s. He sai d t he count y had appr oved t he I of s and
subdi vi si ons, and now, a restrictive bui I di ng per m t cap was bei ng
considered. Col I i er sai d i t was unf ai r t o rrake peopl e pay i nt er est on
usel ess pr oper t y unt i I t he NCDOT rrade t he r oad i rrpr overrent s. He said
sorre of the i of or rrat i on referred to the degradation of ai r and wat er
qual i t y. Col I i er asked where t he st udi es war e f or t hese t vo t opi cs.
He sai d i f an ai r and wat er pr obl em exi st ed, why cowl d al I per rri t s be
approved dur i ng the 13`h rront h or when t he road was W dened. Col I i er
said the ordinance inferred it woul d hel p t he NCDOT t o rrake t he
i rrpr overrent s, Mi ch was i ncor r ect . He sai d i f approved, t he or di nance
would devalue the of f ect ed I of s, and t hi s woul d i rrpact t he
r eval uat i on.
Conni e Evans ( advocat e) spoke about r ecent t er r or i sm event s and
t he saf et y of t he r esi dent s. She sai d t he cormuni t y needed t o pl an
ahead and be self - r el i ant .
Di ck Handshaw ( advocate) rrent i oned he I i ved on rvbck- Neck, an area
previously governed by rvhckl enbur g Count y. He said t he pr i rrary
ar gurrent used by t he rvhck Neck r esi dent s t o becone a part of I r edel I
County was that the citizens coul dn' t vote for the r epr esent at i ves who
governed the schools, t he proper t y t axes, and roads. He sai d the
residents provided a " ni ce tax base" and growth needed to be sl owad.
Don Bart el I ( advocate) said he had rreasur ed t he t r of f i c
congest i on al ong t he Br awl ey School Read, and t her a was an aver age
13
burrper - t o- burrper backup of t wo rri I es. Fie sai d unt i I recent I y, t he
congest i on onl y occur r ed dur i ng t he rror ni ng and eveni ng hour s, but i t
was now dur i ng t he ent i r e day.
AI an Boyce ( advocat e) voi ced concer ns about t he dr i nki ng wat er ,
and t hat rrany wel I s were not producing, or poor qual i t y wat er was
occurring. Fie sai d rrany wat er pr ovi der s had i nst r uct ed t he r esi dent s
t o cut back on wat er usage because of t he hi gh demand. Boyce sai d
Car of i na \Mt er and Crescent had even announced t hat t hey had no rror e
si t es t o dr i I I wel I s. Fie sai d a pi pel i ne f r om t he Town of iVbor esvi I I e
would be expensive and require rruch t i rre to i nst al I .
Greg FI eagl a (opposi t i on) sai d t he peopl e shoul d be addressi ng
t hei r congress rren, gover nor , and of her s f or r oad i rrpr overrent s.
M chael Li ndsey ( advocat e) sai d t he count y needed t o f i nd t he
r i ght ° bal ance. " Fie said the rrany oppor t uni t i es avai I abl e i n the
Bout her n end had over whel rred t he qual i t y of I i f e t hr ough overcrowded
schools, the residents' safety, and traffic congestion. Lindsey said
t hat i n 2006, 1 r edel I Count y was I i st ed as t he 4151 f ast est grow ng
count y i n t he Uni t ed St at es.
Pat t i e Mir shal I ( advocat e) rrent i oned t he 2500 r esi dent s who had
si gned an on- I i ne pet i t i on aski ng t he corrrri ssi oner s t o pr ovi de sone
help regarding the road. She sai d i t was under st ood t he count y had no
cont r of over t he road, but t he roadway needed to be wi dened f or t he
saf et y and wel f are of t he 18, 000 peni nsul a r esi dents.
Court ney Lanct of (opposi t i on) said her parents owned a
const r uct i on busi ness and t hei r at t or ney, Nat al i e Painter, had written
a I et t er about t he or di nance' s negat i ve i rrpact . Lanct of said t he
I et t er r of er enced Sect i on 19 of t he Const i t ut i on, and the I aw of the
I and cl ause, whi ch st at ed " no per son shat I be depr i ved of 1 i f e,
I i ber t y or property, but by the I aw of the land. " She cont i nued by
sayi ng t he cl ause was synonyrrous wi t h t he Four eent h Arrendrrent' s due
process cl ause of t he f eder al Const i t ut i on. Lanct of sai d t he I et t er
advi sed t hat t he "t ouchst one of due process was t he prot ect i on of t he
i ndi vi dual agai nst t he ar bi t r ar y act i on of gover nrrent . " She said t he
cour i s had uphel d r ul i ngs t hat sai d count i es coul d not ar bi t r ar i 1 y
i nt er f er a wi t h pr i vat e business, pr ohi bi t I awf ul occupat i ons, or
i rrpose unreasonable, unnecessary rest r ct i ons under the guise of
pr of ect i ng t he publ i c. " Lanct of sai d t hat by f or ci ng t he srral I er
corrpani es t o corrpet e wi t h I ar ge devel oper s f or a I i ni t ed nurrber of
per ni t s, t he or di nance was essent i al I y put t i ng t he sural I business
owners out of busi ness.
Tr i p Tower ( opposi t i on) read a letter f r om Bi I I Bal I at ow, a
r eal t or with AI len Tate Realty. The I et t er st at ed t hat any rror at or i um
would "send the wrong rressage."
Cary Borrran (opposi t i on) sai d unl ess a person' s I ast narre was
NtKendr y or Mayhew, t hat no one r eal I y had a cl ai m t o the Br awl ey
School Road. Bor rran sai d rrost everyone, wi t h t he except i on of t hese
t wo f am I i es, wer e a r esul t of econorri c devel opn-ent .
Ken VY ench ( opposi t i on) sai d t he i ssue had di vi ded t he corrrruni t y,
and he was di sappoi nt ed t he count y had a " t errpor ar y f i x" t o t he
pr obl em Fle said there wer e bet t er sol ut i ons.
Tony Lee ( opposi t i on) sai d he rroved t o t he ar ea wi t h
f or eknowl edge and f ul I disclosure of the traffic problem Fie sai d
unl ess t here was an acci dent , on non- school days t her e wer e no t r of f i c
pr obl errs. Lee sai d t he or di nance woul d have no of f ect on t he current
t r of f i c i ssue. Fie sai d the or di nance vi of at ed al I cormvn I aw and
st at ut or y vested property r i ght s/ pr i nci pl es provided by t he
Const i t ut i on. Lee sai d t he or di nance onl y hurt t he srral I property
owner.
14
Davi d G sh ( advocat e) spoke about saf et y and t he "gol den hour"
Men t he cr i t i cal I y i nj ur ed and si ck needed rredi cal assistance. He
said t r of f i c should not be a f act or when a rredi cal si t uat i on
necessi t at ed t i rrel y assi st ance.
------End of Public Com7entS------
Commissioner Tice requested Attorney Pope to advise on whether or not the property
owned by Crescent Resources was vested.
Attorney Pope said the concept of vested rights was one used by the courts, and it was a
shorthand phrase to describe the situation where there was a balancing of the private property
interest and the public right's interest. He said vested rights described a situation where a person
had sufficient "skin in the game," or stake in the process, that would make it unfair to stop the
individual from progressing any further. Pope said these persons were said to have vested rights,
and the law was clear. He said there was a four-part vested rights test (government approval,
substantial expenditure of money, good faith, and detriment) and Crescent's property had not
been reviewed to determine if the test had been met. Pope said he suspected, however, that all of
Crescent's lots were vested. He said in addition, this vesting would not only apply to Crescent,
but to most of the 1,100 lots.
Commissioner Tice said she wanted to make it clear, that should the ordinance be
amended, it wasn't to assist Crescent.
Commissioner Johnson asked for a distinction between statutory and common-law
vesting. He said that if the county had approved a preliminary subdivision, that from a statutory
standpoint, the developer was vested. Johnson said, however, this didn't create a common-law
vesting for the individual building permit in the subdivision. He asked if this were correct.
Pope said the interpretation was correct. He said for statutory -vested rights, that an
approval for the subdivision would make it vested.
Johnson said common law vesting had the four-part test. He said that if the four parts of
the test were met, the building permit was vested under common law. Johnson said that as far as
"substantial" it became somewhat subjective on what constituted a "substantial investment." He
said Iredell County had generally held that if a person had a building, health, and zoning permit,
or a considerable expenditure toward preparation of the lot -- that if they met two or more of the
criteria, they were considered vested. Johnson said the difficulty came up when a person had to
determine if the subdivision vesting transferred with the ownership of the property, and whether
the vesting of that individual's right to build went along with the property. Mr. Johnson said it
was Institute of Government Law Professor Richard Ducker's contention that it did, and that in
case law, only one example could be found, and it upheld Mr. Ducker's opinion.
Pope said this was substantially accurate. He said with statutory vested rights, the statute
specifically said they ran with the land. Pope said a specific case wasn't found that common law
vested rights ran with the land; however, it was scholarly opinion (those who have written on this
matter), that the logic of the statute was compelling, and the courts would likely rule the same
way with regard to common law vested rights as they did for statutory vested rights.
Commissioner Robertson read a portion of G.S. 153A that stated a statutory vested right
was not a personal right but it attached and ran with the applicable property. He continued by
saying that once a plan was approved, all successors to the original landowner were entitled to
such rights. He asked the mechanism where this statute would not be used, but common-law
vested rights with the four-part test could be used.
Pope said there were four or five ways were vested rights could be obtained. He said one
would be the ownership of a building permit, another would be under 153A-344 and common
law vested rights. He said these were all concepts to "balance the equities." Mr. Pope said as
far as he could ascertain, no one on Brawley had statutory vested rights. He said at one time
Crescent did when the county entered into a development agreement stating the rules wouldn't
change for a certain period; however, these statutory rights had now expired.
Commissioner Robertson asked Planner William Allison how many lots had been
approved for the Brawley peninsula.
15
lots.
Allison said the numbers were according to acreage. He said there were 1,115 vacant
Robertson asked how many would qualify for common law vested rights.
Allison said a high percentage.
Attorney Pope said this would be fact driven, and he hadn't researched an exact
percentage. He said, however, it would be extremely high.
Robertson asked how high -- 60 or 90 percent?
Pope said it would be closer to 90%.
Johnson said if a person purchased a lot from Crescent Resources, a company that had
substantial capital to put upfront for lot improvements, the subsequent property owner would
then have the improvements transferred to them. He said this arrangement would have a better
chance in the courts for vested rights in comparison to someone who purchased a lot carved out
of a "raw piece" of land with no significant improvements.
Pope agreed.
No one else desired to speak, and Chairman Norman adjourned the hearing.
MOTION by Commissioner Robertson to (1) approve the Findings of Fact &
Conclusions presented for the Residential Growth Management System Ordinance for the
Brawley School Road Peninsula and (2) to approve the Residential Growth Management System
Ordinance for the Brawley School Road Peninsula effective May 1, 2007.
AMENDMENT TO THE MOTION by Commissioner Johnson by adding the following
paragraph as (f) under Section 3 Allocations Available:
(f) EXEMPT PROPERTY
Notwithstanding any other provision of this chapter to the contrary, all lots or parcels
contained within residential subdivisions on the Brawley School Road peninsula which have
obtained at least preliminary plat approval at any time prior to the effective date of this chapter
shall be exempt from the requirements of this chapter, and the property owner (regardless of
whether the property owner is the original owner or developer of the subdivision or a successor
in title) shall be immediately entitled to obtain a building permit in the same manner and to the
same extent as any other property owner in Iredell County without regard to the purposes and
requirements of this chapter. In the event of a conflict between this paragraph 3(f) and any other
provisions contained within this chapter, this paragraph 3(f) shall control.
Johnson said a high degree of the platted lots on the peninsula were already vested. He
said the exemption would clear up what does, and does not, constitute vesting, plus it created a
layer of insulation against possible litigation. He said, too, it would eliminate the task of
determining what was, and was not, vested for the staff.
Mr. Pope said he had always realized that many of the lots were vested, but the question
to be answered was whether the board wanted to define vesting, or whether or not the decision
would be left to the staff to decide what was vested on a case-by-case basis.
Robertson said it appeared that only 150 lots out of the 1100 might not be vested. He
mentioned that Mr. Pope had indicated the ordinance without the amendment was defendable,
and he asked what had changed between the original and the amended document.
Pope said he thought the ordinance could be defended but the amended ordinance would
be easier to defend.
VOTING: Ayes — 5; Nays — 0.
16
AGENDA
MOTION by Commissioner Tice to approve the following five (5) consent agenda items.
VOTING: Ayes — 5; Nays — 0.
(All items were explained during the briefing session.)
1. Request from the Iredell-Statesville Board of Education for Approval of a
Predevelopment Agreement with First Choice Public -Private Partners (Moseley Architects
& English Construction Company) for Presbyterian Road Elementary: Superintendent Dr.
Terry Holliday said new legislation allowed predevelopment agreements for new schools as long
as they received approval by the Local Government Commission. He said to his knowledge,
Iredell and Cumberland were the only counties ready to pursue this type of public-private
partnership. Holliday said the Moseley Architectural firm would use a previously used building
design prototype to bid out a facility to house 950 students. He said if there were changes in the
law the payments would be locked -in, but if a lower interest rate could be found, a refinancing
was permissible.
2. Request for Approval of the March 2007 Refunds and Releases: County Manager
Joel Mashburn advised that Tax Administrator Bill Doolittle had presented the following refunds
and releases for approval.
MARCH 2007 TAX RELEASES & REFUNDS
Releases
Refunds
County
$14,416.54
$2,008.60
Solid Waste Fees
390.00
0
East Alexander Co. Fire # 1
2.37
0
Shepherd's Fire # 2
96.43
0
Mount Mourne Fire # 3
132.39
133.88
All County Fire # 4
622.20
38.93
Statesville City
1,551.12
0
Statesville Downtown
0
0
Mooresville Town
4,046.32
109.61
Mooresville Downtown
0
0
Mooresville School
671.78
30.20
Love Valley
0
0
Harmony
0
0
Troutman
196.71
0
Total
$22,125.86
$2,321.22
A complete list, of the individual
into the minutes by reference.
tax releases and refunds,
is hereby incorporated
3. Request for Approval of a Letter Advising of Opposition to Senate Bill 1492 (Solid
Waste Management Act of 2007) as Proposed by the NC Dept. of Environment & Natural
Resources (DENR): Solid Waste Director Lambert said Senate Bill 1492 and House Bill 1233,
if approved by the legislature, would have serious adverse effects on the landfill operation, and
he requested that a letter of opposition be sent to the county's legislative delegation. He said the
legislation came after a year-long moratorium on landfills, and the new law would make it cost
prohibitive for counties to operate enterprise facilities which would only leave mega -landfills.
Lambert said DENR was proposing a $2 per ton surcharge on the solid waste disposal tipping fee
for landfills/transfer stations, and this would impose an additional burden on the county's
citizens.
4. Request for the Staff to Send a Letter to the Charlotte Area Transit System (CATS)
Advising that Iredell County was not Interested in Participating in a Project to Extend
Commuter Rail Service to Mount Mourne: The staff will draft this letter as requested. (See
briefing minutes for additional information.)
5. Request for Approval of the April 2 & April 3, 2007 Minutes
END OF CONSENT AGENDA
17
ANNOUNCEMENT OF VACANCIES OCCURRING ON BOARDS &
COMMISSIONS
Mitchell Community College (1 announcement)
Centralina Workforce Development Board (3 announcements)
APPOINTMENTS TO BOARDS & COMMISSIONS
Adult Care Home Community Advisory Committee (5 appointments): OTIO by
Commissioner Tice to reappoint Rev. James Henderson and to postpone the remaining four
appointments until the next meeting.
VOTING: Ayes — 5; Nays — 0.
Nursing Home Advisory Committee (4 appointments): MOTION by Commissioner
Williams to reappoint Saundra Smith.
VOTING: Ayes — 5; Nays - 0.
MOTTO by Chairman Norman to postpone the remaining three appointments until the
next meeting.
VOTING: Ayes — 5; Nays — 0.
PUBLIC COMMENT PERIOD: No one desired to speak.
COUNTY MANAGER'S REPORT: A written activity report was submitted by the
county manager.
ADJOURNMENT: There being no further business to conduct, Chairman Norman made
a motio at 10:10 p.m. to adjourn (NEXT MEETING: Tuesday, May 1, 2007 at 5 & 7 PM in
the Iredell County Government Center, 200 South Center Street, Statesville, NC.)
VOTING: Ayes — 5; Nays — 0.
Approved:
18
Clerk to the Board