HomeMy WebLinkAboutAgenda - 05-17-2011- 5n1
ORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: May 17, 2011
Action Agenda
Item No. J - n
SUBJECT: Fox Hill Farm Central -Amendment to the Resolution of Approval
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N)
ATTACHMENTS: INFORMATION CONTACT:
1. Revision to 2001 Resolution of Approval and Craig Benedict, Planning Director, 245-
Proposed Revision of Lot 167 Fox Hill Farm 2592
Central - Phase 4 Glenn Bowles, Planner II, 245-2577
2. March 21, 2011 Letter from Fox Hill Farm, LLC
PURPOSE: To consider a revision to the Resolution of Approval dated December 11, 2001 for the
Fox Hill Farm Central Preliminary Plat to address on-site environmental remediation issues.
BACKGROUND: Fox Hill Farm Central was approved on December 11, 2001 and was to be
recorded in phases as per the Resolution of Approval. Section F.4 of the December 11, 2001
Resolution of the Orange County Board of County Commissioners for the Fox Hill Farms Central
Preliminary Plat states that:
"The open space shall be conveyed into the Homeowner's Association as
each phase of the subdivision is recorded. "
Now as the time for recording of Phase 4 of the subdivision nears, the applicant has informed the
Planning Department of an environmental situation that will affect Section F.4 of the Resolution of
Approval. Specifically, at some time prior to the creation of the subdivision, underground storage
tanks containing motor fuel leaked into the surrounding soil. Some of the contaminants have
leached into the bedrock aquifer from which surrounding residences obtain their drinking water.
The location of the contamination is within the areas proposed to be dedicated as open space for
Phase 4.
The owner, following proper procedures, contracted with outside consultants to have the tanks, as
part of a Corrective Action Plan, and on-site soil removed. An incident report was filed with the
Raleigh Regional Office of the North Carolina Department of Environment and Natural Resources -
Groundwater Section. A closure report site assessment was also filed.
Several monitoring wells have been installed up and down gradient of the site as well as six
sparging wells. A recent test of the soils in and around the site showed that no contaminants
remain in the soil, but some have migrated into the bedrock groundwater. The owners are
committed to cleaning up the spill in a proper manner and wish to continue to monitor the
groundwater until the contaminants are no longer detectable or meet State Safe Drinking Water
Standards.
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Issue:
This commitment to see the cleanup through to a conclusion affects how and when the open space
is conveyed to the homeowners association. Under normal conditions, all of the open space would
have been conveyed by warranty deed to the association. The owners would like to record the
Phase 4 final plat and at that time would propose to split the open space into two sections. The
first section will contain the area needed for the monitoring/sparging wells, which would be fenced
off until such time as the State of North Carolina has declared the site to be properly cleaned up,
which may take several years to accomplish.
The second open space section will be deeded over to the Fox Hill Farms Homeowners
Association with the recording of the final plat. The owners would like to retain ownership of the
first open space section until the site is properly clean and cleared by the State of North Carolina
and then deed the land to the Homeowners Association. This will keep .the Homeowners
Association off the chain of title for environmental liability purposes. The owners also propose to
revise the Homeowners Association documents to reflect this situation.
The December 11, 2001 Resolution of Approval establishes the condition that "the open space
shall be conveyed to the Homeowner's Association as each phase of the subdivision is recorded."
This language, when read in conjunction with Section III-D-3-f of the Subdivision Regulations,
which states "a change may be considered a minor change if it does not involve any of the
following: (a) any substantive change in a condition of approval; and (c) any substantial change in
the location of or any decrease in the amount of open space, buffers, or area reserved for
recreation use."
Planning Staff Recommendation:
Splitting the platted open space lot into two parcels violates the original Resolution of Approval.
The developers intend to fence the area of the clean up for viability and security purposes. When
the Corrective Action Plan is complete, the fence will be removed and the land deeded to the
Homeowner's Association. Section F.4 of the attached Resolution of Approval should be revised to
address on-site environmental remediation issues.
A 0.62-acre portion of Lot 167 of Fox Hill Farm Central, Phase 4 is proposed to be combined with
1.67 acres of the dedicated Phase 4 open space to create a 2.29-acre parcel comprising the
fenced environmental remediation site. The developer will retain ownership of this parcel until such
time that the environmental remediation activities are deemed complete. Lot 167-R will contain
4.18 acres, which is reduced from 4.80 acres approved on December 11, 2001.
Timeline of Review and Approvals for the Development
First Action: Concept Plan approved by the Planning Board on April 4, 2001.
Second Action: The Planning Board in a unanimous vote recommended approval of the
Preliminary Plat on October 3, 2001.
Third Action: Board of County Commissioners approved the Preliminary Plat on December 11,
2001.
RECOMMENDATIONS: The Manager recommends the Board approve:
1. the reduction of Lot 167 of Fox Hill Farm Central, Phase 4 from 4.80 acres to 4.18 acres;
and
2. the attached "Revision to the Resolution of Approval" in order to address on-site
environmental remediation issues.
E ~- ~C~I I- os ~ 3
Attachment 1
REVISION TO THE RESOLUTION OF APPROVAL
OF THE
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS
OF DECEMBER 11, 2001 FOR THE FOX HILL FARM-CENTRAL SUBDIVISION
The Board of County Commissioners hereby approves revisions to the December 11, 2001 Resolution of
Approval for the Fox Hill Farm-Central subdivision to address mitigation of environmental conditions
discovered on the property after the original resolution was approved, as follows [struck-through text to be
deleted; underlined text to be added]:
E. Parkland
2. The second paragraph of Section IV-B-7-b of the Orange County Subdivision
Regulations references the required minimum recreation space ratio in the Orange County
Zoning Ordinance, Article 5.1.1, which requires 0.028 square feet of recreation space per land
area dedicated to residential use [0.028 * 297.93 = 8.34 acres or 363,379 square feet]. In
those cases where the required minimum recreation space results in a larger amount than the
public recreation space requirement of 1/57 acre per lot, the difference shall be established as
private recreation space for the use of the residents of the development (363, 379 - 69, 543 =
293,836 square feet (6.74 acres). The developer has planned ~n~ 102.09 acres of open
space (33%) to be maintained by the Homeowners Association, which satisfies the County
requirements for private recreation use.
F. Miscellaneous
4. The open space shall be conveyed into the Homeowner' s Association as each phase of the
subdivision is recorded, except that 2.29 acres shall be retained ~ the developer until such
time as the enviromnental remediation activities are considered adequate ~ the North Carolina
Department of Environment and Natural Resources _ Groundwater Section. At that time the
developer shall deed the remaining 2.29 acres to the Homeowner' s Association as open spac.e•
NOW THEREFORE BE IT RESOLVED by the Board of Orange County Commissioners that the
Resolution of Approval for Fox Hill Farm Central Phase 4 Subdivision is hereby amended as shown above
and the attached revision to the Lot 167 of Fox Hill Farms Central, Phase 4 Final Plat dated November 17,
2010 is approved.
Upon motion of Commissioner ,seconded by Commissioner ,the foregoing
resolution was adopted this the Seventeenth day of May, 2011.
I, Donna Baker, Clerk to the Board of Commissioners for the County of Orange, North Carolina, DO
HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a
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meeting held on May 17, 2011 as relates in any way to the adoption of the foregoing and that said
proceedings are recorded in Minute Book No. of the minutes of said Board.
WITNESS my hand and the seal of said County, this day of , 2011.
Clerk to the Board of Commissioners
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REV/SIGN OF LOT 167 -
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NOVEMBER 17, 2010
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O~yWER: Fox Hill Form, LLC
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HRlaborough, NC 27278
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THis properly iYoa ocquired by the oyrner
by deed recorded in Book 1805 page 177,
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Attachment 2
~~~ ~iL~ ~li.~l~i~ LLC
200 NEW SHARON CHURCH ROAD
HILLSBOROUGH, NC 27278
Phone: (9I9) 643-2225 ~ Fax: (919) 643-2227
March 21, 2011
Mr. Michael Harvey
Orange County Planning
P. O. Box 8181
Hillsborough, NC. 27278
RE: Fox Hill Farm -Central -Phase 4
Dear Mr. Harvey:
I am requesting a change to the original preliminary plat approval dated December I1, 2001
issued to Randolph D. Fox for the Fox Hill Farm -Central subdivision.
As you know, Mr. ~ Fox is deceased and I am now the Manager of Fox Hill Farm and a Co-
Trustee of the Randolph D. Fox Estate/Marital Trust of which Fox Hill Farm, LLC is an asset. I
have included documents which evidence my titles.
~,
I am in the process of finalizing the plat for Phase 4 and find that I need to request a revision to
the original preliminary plat approval. I am asking you to allow Fox Hill Farm, LLC to retain
ownership of a -1.05 acre portion of the common area which was found to have a minor release
from an Underground Storage Tank that was removed on March 15, 2001. This parcel will be
combined with 0.62 acres of Platted Lot 167 to create a 1.67 acre parcel which would remain in
the name of Fox Hill Farm, LLC until the remediation is complete and cleared by the State or
until Fox Hill Farm, LLC is dissolved. At that time the 1.67 acres would be conveyed to the Fox
Hill Farm Master Homeowner Association.
Your consideration in this matter would be greatly appreciated. Feel free to give me a call if you
have any questions concerning my xevision request.
Sincerely,
~~~~~
~~~~e,
Catherine C. McGhee, Manager
Fox Hill Fanm, LLC
Enclosures
cc: Steve Yuhasz, ENT Land Surveys, Inc.
7
FIRST AMENDMENT TO OPERATING AGREEMENT
OF FOX HILL FARM, L.L.C.
THIS FIRST AMENDMENT ("Amendment") to the Operating Agreement of Fox Hill
Farm, L.L.C.,a North Carolina limited liability company (the "Company"), is made as of the 1st
day of October, 1998, by RANDOLPH D. FOX {"Fox",);
WITNESSETH THAT:
WHEREAa"", Fox is the sole party to that certain Operating Agreement of the Company
dated 7anuary 1, 1998 (the "Operating Agreement"); and
WHEREAS, Fox is the sole Member and Manager of the Company; and
WHEREAS, Pox desires to amend the Operating Agreement for the purposes of increasing
the number of Managers of the Company from one to two and to name the second Manager;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Fox hereby states
and agrees as follows:
1. Amendment of Operating. Agreement. Section 3.2 of the Operating Agreement is
hereby amended for the purpose of stating that there shall be two (2) Managers of the Company.
Schedule II of the Operating Agreement is hereby deleted and replaced by Schedule II attached
hereto and incorporated herein by this reference. Schedule II attached hereto sets forth the names
and addresses of the Managers of the Company which are effective as of this date.
2. Conflicting_Terms. Whenever the terms and provisions of this Amendment shall
conflict with the terms and provisions of the Operating Agreement, the terms of this Amendment
shall .control over the conflicting terms of the Operating Agreement.
3. Ratification of Operating Agreement. Except as expressly set forth in this Amendment,
the Operating Agreement is hereby ratified and affirmed.
IN WITNESS WHEREOF, Fox, as the sole. Member of the Company, has executed this
Amendment on the day and year first above written.
w}~w\emend.fox
ME R:
~c~
Rando ph D. Fox
8
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
REVOCABLE TRUST AGREEMENT
FOURTH RESTATEMENT
THIS AGREEMENT, entered into this„L`? day of , 2008, by and
between RANDOLPH D. FOX, a resident of the aforesaid County and State, as the "GRANTOR",
and RANDOLPH D. FOX and CATHERINE C. McGHEE, as the "TRUSTEES" under this the
"Randolph D. Fox Revocable Trust Agreement";
WITNESSETH:
WHEREAS, the GRANTOR executed a certaua Revocable Trust dated the 27~' day
of August, 1990 (the "Trust."), reserving therein the power to alter and amend said Trust; and
WHEREAS, pursuant to said power of amendment, the GRANTOR restated said Trust in
its entiretybyinstruments dated January 10,1992, May 16, 2002, and July 7, 2003, always reserving
the continuing power to alter and amend said Trust; and
WHEREAS, the GRANTOR amended said Trust by instrument dated the 27t'' day of March,
2007; and
WHEREAS, the GRANTOR now desires to amend further certain provisions of the Trust
as set forth herein anal tv again restate said Trust in its entirety; and
WHEREAS, the TRUSTEES are willing to accept the Trust as hereinafter amended and
xestated; and
WHEREAS, at this time the immediate family of the GRANTOR consists of his wife, Linda
Troy Fox, and his children, Greyson Hill Fox and Randolph. Lee Fax.
NOW, THEREFORE, in consideration ofthe premises and the mutual covenants hereinafter
set forth, the GRANTOR andthe TRUSTEES agree that the Randolph D. Fox Revocable Trust dated