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HomeMy WebLinkAboutMinutes 08-27-2012 APPROVED 10/16/2012 MINUTES ORANGE COUNTY BOARD OF COMMISSIONERS ORANGE COUNTY PLANNING BOARD QUARTERLY PUBLIC HEARING August 27, 2012 7:00 P.M. The Orange County Board of Commissioners and the Orange County Planning Board met for a Quarterly Public Hearing on Monday, August 27, 2012 at 7:00 p.m. at the Central Orange Senior Center, Hillsborough, N.C. COUNTY COMMISSIONERS PRESENT: Chair Bernadette Pelissier, and Commissioners Alice Gordon, Barry Jacobs, Valerie Foushee, Pam Hemminger, Earl McKee, and Steve Yuhasz COUNTY COMMISSIONERS ABSENT: COUNTY ATTORNEY PRESENT: John Roberts COUNTY STAFF PRESENT: County Manager Frank Clifton, Assistant County Manager Michael Talbert, and Deputy Clerk to the Board David Hunt (All other staff inembers will be identified appropriately below) PLANNING BOARD MEMBERS PRESENT: Chair Larry Wright, and Planning Board members Pete Hallenbeck, Andrea Rohrbacher, Maxecine Mitchell, Tony Blake, Rachel Phelps Hawkins, Alan Campbell, and Johnny Randall PLANNING BOARD MEMBERS ABSENT: H.T. "Buddy" Hartley, Lisa Stuckey, Dawn Brezina Chair Pelissier called the meeting to order at 7:01 PM. She asked for a motion to add a closed session at the end of the meeting. A motion was made by Commissioner Yuhasz, seconded by Commissioner Hemminger to add closed sessions after the public hearing: 1. Per N.C.G.S. 143-318.11(a)(3): To Consult with the Attorney to protect the attorney-client privilege. 2. Per [N.C.G.S. 143-318.11(a)(5)] To establish or instruct the staff or agent concerning the negotiation of the price and terms of a contract concerning the acquisition of real property 3. Per [N.C.G.S. 143-318.11(a)(4)]: To discuss matters relating to the location or expansion of business in the area served by this body. 4. Per [N.C.G.S. 143-318.11(a)(6)] : To considerthe qualifications, competence, performance, condition of appointment of a public officer or employee or prospective public officer or employee. VOTE: UNANIMOUS OPENING REMARKS FROM THE CHAIR A. PUBLIC CHARGE The Chair dispensed with the reading of the public charge. B. PUBLIC HEARING ITEMS 1. Class A Special Use Permit - To review an application for a Class A Special Use Permit for a proposed 26 lot single-family residential Major Subdivision on a 68.51 acre parcel of property off of Mt. Sinai Road (SR 1718). Michael Harvey: I will remind the Board that you are dealing with a Class A Special Use Permit, which by definition is a quasi-judicial hearing. If you are speaking either for or against the application —that includes the applicant and the applicant's engineer and staff—you need to be sworn. Mr. Chairman, if you will swear in all interested parties in for this hearing. Larry Wright: All parties approach the bench, and while they're doing so, I'd like to inform everyone that additional testimony can be accepted in written format to the Planning Department to be submitted prior to the Planning Board meeting. It will be part of the Planning Board deliberations, and this will offer the opportunity for the Board of County Commissioners to have material where they can consider this in their deliberations thereafter. All interested parties were sworn in at this time. Michael Harvey: You have a rather lengthy agenda item here this evening, and I'm going to try to go through it as methodically and as quickly as possible and allow the applicant and citizens the opportunity to speak. As the Chair has already articulated, we have a major single-family residential subdivision of 26 lots being proposed on a parcel of property off of Mt. Sinai Road. We have two additional pieces of information concerning this project, which I'd like to call your attention to. The first item is a printout of a PowerPoint presentation so that the Board members can follow along. The second is a salmon-colored piece of paper, which contains correspondence from Orange County's DEAPR department as well as State review documents. We also have an email sent by Mr. David Sykes of Orange County Emergency Services on Thursday, August 16th for your consideration on this item. Unfortunately, this information was received after we had distributed the packets so we were not able to include it. Attachment 1 is the application packet, and very briefly, I just want to run down what that entails. The application packet begins on page 11 with a detailed narrative statement from the applicant demonstrating compliance from their standpoint with the various provisions of County code and the Comprehensive Plan with respect to this project. Page 27 provides pictures of existing structures on the property. Page 28 is the Soil Service report for this property. Page 60 is a Surface Water ldentification completed by Orange County Erosion Control with respect to the streams that are located on this property. Page 64 is a Water Utility Agreement concerning the proposed community well. Page 81 is the adjacent property owner list. Page 83 contains letters submitted to the applicant from the State Department of Cultural Resources concerning this project. Page 87 is the Agreement of Purchase and Sale of this property. Page 89 is the proposed draft Declaration of Covenants, Conditions, and Restrictions for this property. Page 129 begins a property information data sheet submitted by the applicant's expert in an attempt to demonstrate compliance with various provisions of the Unified Development Ordinance, specifically that this project will maintain or enhance the value of adjacent property. Page 133, you will note there are sample elevations of the houses proposed for this project. On page 144 you have some additional maps showing environmental features. Attachment 2, which is a vicinity map created by staff is on page 150. Attachment 3 contains staff inemorandum from Orange County Solid Waste and Orange County Health Department. Attachment 4 is a fiscal analysis that we produced outlining the anticipated costs to service the proposed neighborhood and what monies the County could expect to receive from this project and if it is developed. Attachment 5 is notes of the neighborhood information meeting, which we are going to discuss in the general abstract. Attachment 6 is the Finding of No Significant Environmental Impact statement completed after County staff determined the project would not have any significant impacts on this and surrounding property. Finally we have the notification certification that we typically provide for these types of projects outlining our compliance with established notification requirements. As detailed on pages 4 and 5 of your abstract, the applicant is proposing a conventional subdivision on a parcel of property located in the Rural Buffer Zoning District. As we articulate in our abstract, this particular parcel of property is located in the rural portion of the County that is defined on our Growth Management System Map, and it is located within the Rural Buffer Rural Residential area as defined and noted within the Joint Land Use Plan that we have with the Towns of Chapel Hill and Carrboro. The next slide is a vicinity map with the location of the property as well as a brief overview of surrounding development. As you will note, on the map that we have provided we have a mobile home park to the south, the J&J Mobile Home Park. To the east of this property, we have Triangle Land Conservancy property. This area denoted in green is a conservation easement. You also have to the north a major subdivision with lots ranging from 2-3 acres in area. You have to the southwest of this property the Green Valley subdivision with lots ranging from 40,000 square feet to two acres in size. To the west you have lots essentially one acre in area. Across the road is the Blackwood Forest subdivision with lots approximately two acres in area. The project as we identified in the abstract, the applicant is proposing lots with a minimum of two acres in area. The overall density for this project is one dwelling unit for every two acres. The proposed roads for this project will be built to DOT standards, and it's the applicant's desire to turn the roads over to NCDOT for maintenance at the appropriate time. According to the site plan lots 1-22 are going to be served by on-site septic systems. The applicant is proposing that lots 23-26 be served by an off-site septic area. The site plan denotes that there will be a utility easement transferring the affluent just outside of the NCDOT right-of- way to the proposed off-site septic area. There will be individual septic sites for each of these lots and there will not be one giant septic system. The rationale for that is to ensure that all four lots don't expect problems if the septic system fails. There will be a 30-foot land use buffer around the perimeter of this project and there will also be a 75-foot land use buffer along Mt Sinai Road as required by the code. The applicant is proposing at this point in time to service the project with a community well. This is going to be located on a proposed open space lot. There is also proposed to be picnic, recreational center, for use by all of the residents. This slide denotes the site plan. You will note the land use buffer here, the 30-foot land use buffer around the perimeter of the property. Lots 23-26 will be served by off-site septic, which is in this general area of the project. We have two open space lots here, which is where the community well is proposed to be located. This area down in here where there is an existing stream, as I previously articulated to you, the County completed what we call a surface water identification inspection to not only verify the location of this stream, which is shown buffered on the site plan, but verify that the stream actually will have to be buffered in accordance with Article 6 of our land use standards. The applicant is showing a potential storm water basin in this general area that will have the storm water for the project. The storm water system has been designed for a 6,000 gallon detention basin. Within the site plan, the applicant is also showing the proposed street system that will have to be installed along the project. They have also identified areas where foliage will be installed in between proposed lots. Interior lot plantings will have to be planted in order to bring the project into compliance with Article 6 of our Unified Development Ordinance. As you will all remember, the UDO does require in between lot planting designed to preserve the aesthetic of the area. The applicant has already the trees that they are going to try and preserve to meet this requirement, and they have also identified the planting of approximately 60-70 trees that will be planted in between various lots in order to ensure compliance with the code. Our comments, which are contained throughout pages 5-11 of the abstract is that the project's density is consistent with the Comprehensive Plan of the Joint Planning Land Use Plan; i.e., one unit for every two acres of property. As contained within Attachment 3, Orange County Erosion Control has already tentatively approved the proposed storm water plan and grading plan. Final approval will not be received until the formal Erosion Control and Grading Plan is submitted for review. We also have the memorandum from Orange County Environmental Health within Attachment 3 articulating that they have found suitable soils supporting septic system development in each of the lots of these 1-22 and that the main lot to serve as the central depository for lots 23-26 appears to be sufficiently sized. They also stipulate that the community well that is currently proposed will have to be reviewed and approved by the State. We held a neighborhood information meeting on this project on August 6th. We had good attendance from local residents and the concerns can be summarized as follows. There was a lot of concern on the community well and whether or not that would have a negative impact on adjacent property. Although not mentioned here, I believe you have a copy of a letter sent to Commissioner Pelissier outlining a local residents' concern over the use and installation of geothermal wells that utilize the pump and dump system. That concern is not necessarily associated to this project, it is a countywide concern. The concerned resident has asked that the County begin a comprehensive review on whether or not there should be limits or outright bans on the use of geothermal wells, specifically focusing on pump and dump and geothermal wells in general. Given the fact that Orange County does not had a true aquifer, that most of our water resources are taken from fractures within the ground, and that by eliminating geothermal wells would help to alleviate some of the identified concerns over ensuring the availability of adequate water supply for personal use and not for the heating or cooling of a residence. Statements and comments were made over concerns about this development causing taxes for existing residents to rise as property values would improve. There were concerns over off-site related traffic impacts that could be generated by the project, specifically to Alexander Drive, Mt. Sinai, and NC 86. There was a concern over the protection of the existing stream in the southwest corner of the property. It was suggested by some of the residents in attendance that the applicant provide a plan to have a density of one dwelling unit for every five acres as well. Staff's recommendation is articulated on page 10 of your abstract: 1) Receive the SUP application, 2) Conduct the Public Hearing and accept public, Planning Board, and BOCC sworn testimony on the application, 3) Refer the matter to the Planning Board with a request that a recommendation be returned to the Board of County Commissioners in time for the November 20, 2012 BOCC regular meeting, and 4) Adjourn the public hearing until November 20, 2012 in order to receive the Planning Board's recommendation and any submitted written comments. Unless there are any specific questions of ine at this time, I'd like to turn it over to the applicant and allow them to provide additional detail on this project. There are a few residents signed up to speak. Larry Wright: Do the Commissioners have any questions of Mr. Harvey? Members of the Planning Board? Chad Abbott: I'm Chad Abbott, with Summit Consulting. I have been duly sworn. I'm here on behalf of Weekley Homes. Mr. Jeff Akin and his staff are here to answer any questions related to the details of how the subdivision will be built, the geothermal comments, as well as the individual septic comments. I am here to answer any technical questions you may have related to the 26-lot subdivision proposed. Commissioner Hemminger: Concerning the general well situation, the neighbors of this property have identified concerns over their wells going dry, do you know how deep their wells are and how deep this one is supposed to be? Chad Abbott: I do not think a survey has been conducted on the adjacent wells. Diana Walstad: Mine is 250 feet. Commissioner Hemminger: How deep is this one supposed to be? Chad Abbott: The exact depth, you would have to run it until it hit the water that would meet the demands of the subdivision. Individual wells would be allowed and would be in compliance with any other standards for a subdivision. That is an option they have. Commissioner Hemminger: For the four lots that have septic that runs all the way underneath all the other lots, that's a long run, how does that technically work? It's pretty far away. Chad Abbott: The technical design of that has not been done either way. If it cannot be a gravity feed, there will be a pump to disperse the waste in that area. Commissioner McKee: In reference to the pump and dump geothermal, could you elaborate a little bit more on the specifics of that type of system versus what the County is using as a geothermal system. Chad Abbott: I'm not an expert at geothermal. We can get some more information on that and provide it to you. Commissioner Yuhasz: I'm just wondering, looking at the remote septic system, was any thought given to a design that would provide that same kind of remote system somewhat less remotely from the lots being served? It's probably in here and I've missed it, but who is going to own the property that the septic systems actually are on? Jeff Akin: My name is Jeff Akin and I'm with Weekley Homes and I have been sworn. Those will basically be extensions of the individual lots. They will be owned by the individuals. It is not really a remote system, it is actually just an extension of their lot that is connected at the end of the easement. They will more than likely be force mains. We have done systems like this before and we have never had any problems with them. It's just trying to access the available soils in a different location. It's part of the lot that is owned by the individual, there is no combination of systems. It's pretty much standard. Commissioner Yuhasz: I'm familiar with those kinds of systems and I've actually been involved with one that could pump as much as 6,000 feet, so I know it's possible. But I'm also aware that part of what is important for a septic system is that there will be regular inspection of the field by someone to make sure that there is not any obvious signs of failure. I just want to make sure that in this case, that kind of inspection will occur. With this being owned by individuals who are several thousand feet away, there is a concern with it being owned individually that those will not get that kind of inspection. Jeff Akin: I believe they are required to be inspected periodically. Joe Lyle is our expert in this area. Joe Lyle: Joe Lyle and I have been sworn. There will be an operation maintenance agreement in place by a certified septic system operator for each of the remote systems. And they will be inspected on a regular basis. Jeff Akin: And the second item is we intend in the homeowner's documents to add a provision where that is maintained by the HOA just so we don't have an issue with someone who doesn't go down and maintain that area. I think it would be worthwhile to have that included in the maintenance contract. It won't be unsightly and it will be inspected. Michael Harvey: I think I can add a little more information to that, if you refer to the documentation provided to you with respect to Environmental Health comments, they asked us that we include the off-site wastewater system procedures provision. There are numerous regulatory requirements associated with the development of off-site septic areas including a requirement for annual certification and inspection. There are inspection requirements and certainly you do have the authority, as this is a special use permit, as you've done with a few projects in the past- most recent memory is Carolina Friends School —you required annual inspections to ensure the operation of the system. I would encourage you, if you have that concern to ask the applicant to consider the imposition of such a condition. Commissioner Gordon: One of the comments made here was a question about the geothermal well. The person who answered said he wasn't an expert. Is there any expert here that could speak to that concern? If there is not and there is additional information, then I would ask the Attorney how one handles that. John Roberts: If the additional information is not to be presented at this hearing, it could be submitted as a written comment to the Board prior to either the Planning Board's hearing, or prior to the final hearing on this, which is scheduled for November. Michael Harvey: November 20th is the County Commissioners' reconvening of the public hearing. The October regular meeting is the Planning Board issue. John Roberts: The reason it has to be written comment is that, traditionally and usually when this Board continues or adjourns these public hearings, it adjourns them solely for the purpose of accepting the Planning Board recommendation and written comments. Commissioner Gordon: Is it the case then that there is not an expert or someone from the developer that wishes to testify and therefore it would be a written comment? Michael Harvey: I'll let the applicant speak to that specifically. The subject of geothermal wells only came up as a result of a neighbor concern on the general use of such a system. There is no pump and dump geothermal well proposed for this site, in fact, it doesn't appear anywhere in the narrative of the application that there will be such systems on the project. It is fair to recognize that you've had a citizen that has asked the Board to begin a comprehensive assessment on the installation and use of such systems. The applicant indicated at the neighborhood information meeting that it was not their intent to promote or encourage the installation of geothermal wells with a pump and dump system. I think the issue here is two- fold. You have a concern that transcends this particular project, but the County Commissioners need to give us some direction on it. But you also have a situation where you have an applicant that has not proposed the installation of such systems on the property in the first place. I do not feel qualified to provide any kind of detail of the benefits of the various types of geothermal wells. Commissioner Gordon: Well, if there could be a definitive statement that there would be no geothermal wells on this property, then there would be a more general question and not specific. Jeff Akin: We will consider that to see if that's likely a request from a homeowner, but we were not anticipating the use or installation of geothermal well systems. The comment that was made was directed at water usage and the concern was water usage on an individual lot in an area with wells. We're trying to find an answer to that question, and it would probably be best to submit a written response just so we respond accurately to that person's comment. Commissioner Gordon: Just so it is definitive when we have to make a definitive decision. Jeff Akin: It should be. I don't think it's a major issue, so a resolution should be reached. Chair Pelissier: What is our role vis�-a-vis� the draft of the covenants? I have some questions about that. Michael Harvey: I think it's perfectly appropriate for the County Commissioners to address those comments and concerns to the applicant so that they can begin to take notice of whether they need to modify. These are draft covenants that they are proposing for this project. I think it is perfectly reasonable for you all, if you have concerns or you would like specific answers to specific questions that they can provide that to you. Chair Pelissier: I do have a couple of comments and questions. One is just an inconsistency with the presentation. The covenants say on page 97 that there will be 14 lots served by off-lot septic area and I understand it's only 13. Jeff Akin: These are not draft covenants for this project. These are actually just sample covenants from a project that is somewhat similar. We have not gone through the draft covenants process, but we took a neighborhood that was similar as far as having septic and other things. All inconsistencies like that are going to be addressed will be done so to ensure the standards are specific for this site. Chair Pelissier: The other comments I had were on page 103 where it talks about that you can't have any structure for providing alternative sources of energy unless you have permission from the architectural review committee. I did have concerns about that because with a lot of people wanting solar panels and other things for alternative energy, I just don't like to see restrictions for that. Jeff Akin: These are general restrictions, we generally want to make sure that those panels are located in the least visible area and still be functional. We want to make sure that they're not reflecting or doing anything to inhibit someone's use of their personal property. We don't generally restrict anything like that. We want to encourage that, but if we don't have them come through the process of architectural review, we may end up with two parties having a discrepancy over the locations. In all of our history we have never had an issue where we were not able to work out a location acceptable for an alternative use. So, we're very open to that. There is an appeal process if someone gets denied. Basically, you couldn't deny them without due process, without a purpose for denying. Chair Pelissier: Maybe it could be written a little clearer. I also did want to have some discussion about the off-site wastewater treatment and that the homeowner's association would be responsible. I just want to stress that I have some concerns about that, because the people that would be responsible are not the property owners. I don't know if there would be any problems with maintenance because they would be assessing the charges for the repairs to the actual owners of specific properties with off-site. I don't have an answer to it except that it is just a concern of whether that actually works since the people who are responsible are not the homeowners. Jeff Akin: Everyone deals with their own maintenance in the maintenance for the HOA. The system, the repair field, anything to do with the pumps will remain individually the homeowner's responsibility. So there is going to be no separation. It will simply just be an obligation for the grounds maintenance. Chair Pelissier: The last question I had was about the water, I was just curious, why were the individual wells not considered? As I understand it, maybe I misread it, that the old property owners will have to pay the company for their well. Normally, when we have individual wells, property owners only have to pay if there is a problem with the pump. Jeff Akin: I understand that the concern over a community system and difficulty in finding the necessary amount of water. We're leaving options open for the use of individual wells on each property if we cannot get sufficient water yield with the community system in accordance with State law. We've met with a couple of drill companies in that area. Our hope would be to drill deep and provide a large water supply for the community system, and therefore there would be no concern with tapping. We're still investigating that. If that's not the case and it's not the best avenue to go, we'll go back to the individual wells. If we're running into a situation where we'll have to put a lot of wells in and not a lot of power and have the potential of wells running dry, we'd much rather put the expense in. Typically, because of the issue that came up with the last one convinced us that we really should try to go that route first. We're still in the process with it. Commissioner McKee: In an adjoining county, an issue of mineral rights has come up and I wonder if that has been addressed. I might ask that the Attorney address this concern. John Roberts: I would be unable to answer that at this time. Jeff Akin: We have never made any attempt to retain mineral rights on any lots whatsoever. Basically, the laws of the local jurisdiction, state laws, would apply to the individual rights. I would assume that it's their rights to the minerals. Larry Wright: Any more questions from the County Commissioners? The Planning Board? Johnny Randall: I just wanted a clarification on the geothermal wells in that there should be perhaps a question about the use and operational characteristics of pump and dump and the closed loop system. I assume a closed loop system does not require any more water than it does to build up pipes. The closed loop does not use groundwater, so that should be encouraged, and the pump and dump should be discouraged. Commissioner Yuhasz: I don't remember the details, but at the last Board of Health meeting, which was last week, this subject did come up and Tom Konsler, the Environmental Health Director did say that the pump and dump system is not one that's generally used or approved in Orange County and that he would anticipate that any geothermal system that was approved in Orange County would not be a pump and dump variety. Larry Wright: For the general well, the communal well, how many gallons per unit timed would you estimate that it would take in peak hours? Part b to that question is how would that influence, if any, neighboring wells from adjacent neighbors? Joe Lyle: Let me address the second part of that question first. My Name is Joe Lyle and I have been sworn. I've had several discussions with Tom Konsler. Tom has issued the following statements to me regarding this well or any proposed wells. I know there was concern from neighbors that maybe a community well could impact their existing wells. The statements made by Mr. Konsler is that the geography of the area does not lend itself to drying or reducing the peak gallons per minute of neighboring wells, to speak to the geography and the fracture in this part of the county. I also asked him about the sampling limits and what his experience has been, and he said that they have done extensive sampling in the County. The contamination as well as yields, and also assured that this has not been the case. He did not see an issue with that. We also spoke with a company that would eventually take over the operation of a community well system, one of the largest bore utility providers here in the state. They have not had any problems with their other community well systems in the County impacting neighboring wells. It's our thought, based on that information, that it should not be an issue, based on the geography here. Larry Wright: So this is independent of a water table. Joe Lyle: The way it was put to me, is that there are not individual aquifers that would spread, that these are pockets of water underneath the particular piece of land. Your neighbor next door could have 100 gallons a minute and you could end up with 2 gallons a minute, and they are completely different water sources. That's the way that Tom explained it to me. Larry Wright: My second question is maybe for somebody else to answer. With the 6,000- gallon retention pond, you have homes coming in here with lawns that have a high runoff coefficient and then you have roads and then you have these deep ditches and they take water rapidly to this 6,000-gallon retention pond. It's my understanding, I could be wrong. If it happens that this retention pond overflows, where does that overflow go? Jeff Akin: I'm not sure if we're at that level yet. We're not at the point that we have designed the stormwater conveyance system, the ditches that you're talking about. It would be our belief and hopes that water would not be quickly conveyed off of individual property homeowners to that pond. Most of that 6,000 gallons would be used for the road construction on a temporary basis as well as some of the roadside ditches. The way that this property drains, it doesn't all drain to that spot. Some of it drains naturally off to the side. Larry Wright: My concern here is with neighboring properties. Jeff Akin: I understand. We're simply not at the engineering level right now to be able to comment on how that system would really be designed. There may end up being two storm water ponds. John Roberts: There was a response to Mr. Wright's first question regarding community wells. I believe your response was based on a conversation you had with Tom Konsler? Joe Lyle: That's correct. John Roberts: Heresay testimony is generally not allowed for this type of hearing. I recommend that you respond to the Board in writing to that question. Joe Lyle: I would be glad to. I have requested that in writing from Mr. Konsler. Michael Harvey: I just want to make a statement concerning the storm water. If you can refer to page 163-164 of your packet. You do have a memorandum that has been produced by Mr. Terry Hackett, our Storm Water Resources Officer, who indicates that based on the preliminary assessment, a 6,000-gallon depression area seems sufficient. But obviously, a formal storm water plan is going to be required. That is going to be a required and mandated condition for approval of this if we get to that point. If the Planning Board can make an affirmative recommendation, staff will recommend a formal storm water plan. But at least as it has been sized currently, Mr. Hackett does not see an issue with it complying with local or state storm water or nutrient issues. Commissioner McKee: If I might point out one thing. This abstract on page 164 refers to a 6,000-square foot potential storm water treatment area. That is entirely different than a 6,000- gallon. I'm sitting here thinking that 6,000 gallons is approximately one tractor trailer. This would be smaller than a child's wading pool Michael Harvey: I apologize for the misuse of the term and for the confusion it has created. John Roberts: I have a comment with regard to the Chair's question regarding the restrictive covenant document. This document actually predates a General Assembly law in 2009 that made it illegal for these types of covenants to outright ban solar reflectors on homes. They are still allowed to regulate the location. That's just for your information on that question. Johnny Randall: Shouldn't the retention pond be measured in cubic feet and not square feet? Larry Wright: It would seem so. Commissioner Gordon: It just strikes me that there are a number of questions that have been unanswered that are going to be answered by written comments. If they are not answered, then I would strongly urge us, if it is approved, that any development that is here have any conditions so that if something is missing and not definite, that before it is built, that there be a condition that would specify. There have been a number of questions that we have asked that haven't been answered that would be deferred to written comments. I would just urge that at the Planning Board level and at the County Commissioners level that there be conditions that address anything that's important that's not definitively addressed. Michael Harvey: I'll just remind everyone here the applicant has an obligation to respond to any and all questions in writing that will be presented to the Planning Board and also to the County Commissioners. I would dare say that if staff does not feel those questions have been adequately addressed or answered, we have never been shy to recommend conditions for the applicant to have to adhere to. But the applicant also runs the risk if they don't submit the necessary information and get a negative finding by the County Planning Board, the County Planning staff will ultimately deny the project. So, obviously, it is in their best interest to address those comments, and we will work with them in order to make sure that the comments and questions will be addressed by the Planning Board meeting. Larry Wright: Any more questions by the Planning Board or Commissioners? Any more presentations from the applicant? At this time, I'd like to entertain any testimony from the public. I have Mary Jo Fife for item 1. Would you please come to the podium, state your name, and that you've been duly sworn. PUBLIC COMMENT: Mary Jo Fife: Hi, I'm Mary Jo Fife, and my husband and I own 3 acres of land that back up into this development just exactly east. Myself and one other person have wells on that land. Our projected idea is to build homes on those 3 acres for land for families. The well that we have is directly east of what is proposed to be built. This well that we have, although it serves only one person and has for the last 10 or 12 years, has gone dry and we've had to have it re-drilled again. That is only sufficient for one person right now. We know there's going to be problems. There is a family with two or three kids next door, juxtaposition to this one, and I'm not sure what their position is on their well. If there is an excessive well use on a well that is very close and juxtaposition to this well, I'm looking at the land and I think it's maybe 300 feet or so from that, and I think that it could have an effect upon our well. We do not want it to go dry, just because it's a new housing development. That's our major concern. After the comments, it was discovered that Ms. Fife had not been sworn in. She was then sworn in and repeated her comments. John Roberts: Ms. Fife, you need to repeat your comments since you were just sworn in. You need to repeat, if you can, the essence of what you just testified to. Mary Jo Fife: We have three acres of land. Two acres that bridge back up to this development. There's only one other person in that area that has property and has a well on it. Our well from my best observation, from having attended the first meeting, I think it was August 6th, is in close proximity to the area where the well is going to be put for this development. My concern is, that because our well has gone dry and we had to have it drilled again about ten years ago, plus the fact that the well has only been serving one person for the last 10-12 years, that there may be a problem with the well given if this huge well is put in close juxtaposition to our well. Diana Walstad: My name is Diana Walstad, and I was the one that wrote the letter about the pump and dump system. I would just like to say, though I wrote it in the letter, in 2002 my well went dry and one of the neighbors next door in a ritzy development had a pump and dump system and it was running continuously, the well was pumping out water into the creek. Meanwhile, my well was almost dry and I couldn't take a shower. These rich people were using the water, pumping it out, for their house. I thought it was outrageous. If you want people to support this, then people like myself need to be protected. I'm all for a re-circulating system, that's fine, but pump and dump is just a terrible waste of groundwater. I live in a lot adjoining lot #25. Jeff Akin: I'd like to respond to Ms. Walstad. The applicant would be willing at this time to officially agree that we would restrict pump and dump systems on this site. We would be more than happy to restrict that. Donna Jean Benson: I've lived on a lot that neighbors this proposed development for 33 years. I have been duly sworn. I'm not particularly opposed to this new development. I guess my biggest concern is wells, because my neighbor, at the same time her well went dry, mine was pretty close to getting dry. I've talked to other people in the neighborhood who aren't here tonight but were at the first meeting that had a real strong concern about the same thing. That was the main thing at the last meeting was the water. There is a development, a new clean place that Diane was talking about with a pump and dump and it borders lots 1-10, that area on that side, I think. I think the Planner was describing that they were two and three-acre lots, but there's at least one that's ten and I think there's one that's sixteen, and they have a community well there that's enormous. Then there was one guy that had pond and he's the one that had the pump and dump thing. The pond was like a waterfall that ran into the creek, the woods, etc., and that was during the serious drought when everybody in our neighborhood was going to the Laundromat and using the dishwater to water the plants and stuff like that. I guess my biggest concern is about the wells. I'm also excited because this area has the rural buffer zone. I'm kind of wondering what's the point of a rural buffer if it seems like this whole area is turning into subdivisions. It just seems like it's a little too dense. Another thing, I keep thinking if I was going out into this rural buffer area and buying land and they came in and said, "your land doesn't perk, you can't put septic here," they're probably not going to allow me to build a house there. I'm thinking that one proposal might be for this developer to take lots 23, 24, 25, and 26 that can't take septic and maybe make that open space or maybe even a park for his development. It would cut the density down a little bit and solve the problem of this remote septic system, which might cause problems for the adjacent property owners. Plus, there's a real cute, nice trailer park over there. I know people don't like trailers, but it's a very nice, clean, nice families that live there, and I know they don't want a nasty septic field for four other remote lots in their backyard. That might make it a little easier to swallow. You know, tone it down a little bit, maybe not so dense, maybe a nice park, and get rid of that remote septic field. Commissioner Jacobs: First, whatever the size of the retention pond is, there's a comment on page 8 from the Fire Marshal. Is there a response to that regarding having a source of water for fighting fires? Michael Harvey: Not at this time, the applicant is working on a response. Commissioner Jacobs: So, we could make a comment about it in this public hearing that they have to address that. Michael Harvey: That's right. Commissioner Jacobs: There's a comment from, in this document, about having a trail that connects with the Johnson trail on the adjacent Triangle Land Conservancy property. Do we have a response to that? Michael Harvey: The applicant has not provided a response and we have not heard from TLC as to whether or not they would even allow a trail from this neighborhood to connect to their property. Commissioner Jacobs: I'd like to see a response before I vote on this. Joe Lyle: On Friday one of the consultants, Michelle Kimpenski, spoke with Jeff Masten with the Triangle Land Conservancy. There was a question about trail access through this property. This is the statement that was made, if they certainly prefer one point of an access into the Triangle Land Conservancy property, so that they can not only control that point of access but also control the hours of when that access is, and if there was a second point of access, they would listen to that opportunity, but they don't prefer that opportunity. Commissioner Jacobs: So, it's the situation that the Attorney mentioned before, if you could get that in writing. Michael Harvey: The TLC property is this property right here (pointed out on the map). Commissioner Jacobs: I also had a question about the 25-foot access easement. This is between 16 and 18, and that's specifically to allow members of the community to get to the open space areas, is that why it's there? Michael Harvey: Correct, yes sir. Commissioner Jacobs: And the homeowner's association is supposed to maintain that, is that correct? Michael Harvey: The homeowner's association will be maintaining it. That information that was not provided will have to be provided. Unfortunately, the previous engineer with Summit, who was working on this project, is no longer part of the company so there has been some information lost in the transition. Commissioner Jacobs: Let me go back to a question that Commissioner Pelissier had. I'm very uncomfortable with the homeowner's association agreement that's been provided that doesn't specifically respond to this development. Let me give you two specifics. We've had these issues before with homeowner's association agreements. One is on page 102 at the bottom, Waste. It sounds to me that you can't have a compost bin on your property, based on this scripture. On page 103, #13, Landscaping, it sounds like you have to put in sod. We are, believe it or not, in a period where the climate is changing, and we don't have as much water and there are some grasses that are actually more drought resistant than others. I would hate to see us require people to put in grasses that are not drought resistant. We need to understand that the developer may be phased out of the decision-making process. So, what's in these documents......and we have seen in the legislature that one of the big issues in homeowner's associations is that people can be pretty intolerant of difference. I just don't want to keep bringing that into Orange County neighborhoods at the same time that we're trying to promote certain kinds of energy conservation and natural resource preservation. Michael Harvey: Commissioner Jacobs, can I just interject and say that Article 6 of our Unified Development Ordinance, the land use buffer, the street and interior lot landscaping, existing regulations require the installation of drought-resistant indigenous foliage and grass. Individual lot owners would be addressing this requirement with the builder in terms of the installation of required foliage. There needs to be some modifications to this document to make it specific as it has been submitted but will remind all here the ordinance does not require the submission of the documents in the first place. I believe the applicant wanted to provide the Board with a feel for the types of local development limitations they typically impose on their projects. Commissioner Jacobs: I have concerns about the remote septic area, and I didn't think Commissioner Yuhasz actually got an answer to his question. His specific question was did you consider something different than a pump system having to pump affluent over a great distance, that question wasn't answered. The answer that was given was based on the legality of the system and the approval process. That's not the same as saying what Ms. Benson was asking. The question was whether the remote septic area is the optimal alternative for the people who live there and the people who live around there. I didn't think that Commissioner Yuhasz got a direct answer to that question. I will say I know what the concern is with that type system. I think the concern was trying to have it more proximate to the houses which would be responsible for maintaining it. Jeff Akin: That's the maintenance issue with the HOA. We felt like this was a good land use plan for this particular site. We thought that it was going to be a nice transition area there. That's not going to be an unsightly area, it's going to be a beautiful mowed meadow. All of the system is below ground. It's going to make a nice green buffer and a transition to the adjoining mobile home park. So we thought it was a really good land use. As far as this tract of land and the testimony about the area in that development, we looked at many properties in this area that are unsuitable for development. There's a tremendous amount of that area that does not work. There are tributaries, the New Hope Watershed, and there are a lot of properties that are not developable. This is really one of the few nice developable tracts. It is mostly not treed. We designed the entire project to have minimal impact on that land. Obviously, economics require us to try to put the maximum allowable number of lots in the project, but we try and meet the code another way. We've put these systems in and there are absolutely no problems with them. They function well. Pumps are absolutely nothing new, they're part of the large percentage of septic systems. They function exactly the same. We'd be happy to address any concerns that come up through the process, but we think this is good land planning and we think we've optimized the site to preserve the trees, to stay away from the creeks, and to have a nice looking neighborhood. We'll make adjustments if we need to. Michael Harvey: We had asked the applicant to provide a sample and they did exactly what we told them to do. There are a few unresolved issues, unfortunately some of which were precipitated by the lateness of which the comments came in from other County departments and other agencies. The Department of Transportation had submitted initial comments. The applicant will provide written responses as they're required to do. Commissioner Yuhasz: I just have to make one comment, and since I probably won't have the opportunity to address this in the future, there is nothing special about a subdivision and I think it's inappropriate for a subdivision to have to go through the time and the expense of this kind of special use permit process, whether it's 20 lots, 24 lots, or 30 lots. It's still just a subdivision. It's still just a body of land to use for development process. I just wanted to raise my objection to this process. Commissioner Jacobs: I have two comments that I'd like to direct to staff and the Planning Board. One is on page 7, just the way in which the material was presented. I would think it would be more clear to separate out land use buffers from open space in cases like this because it confuses what is open space. I think you're saying there is specifically designated open space in the subdivision, then there is space set aside that is required based on our buffer standards. Is that correct? Michael Harvey: Yes sir. It should be remembered that there is technically no independent open space area required for a conventional subdivision, although the applicant is providing some. Commissioner Jacobs: So, it would just be easier for me, and probably for others. To the point though, and Ms. Benson made it as well, and staff made it on page 5 in the next to the last paragraph. When we adopted the Joint Planning Agreement, and there were many objections from property owners in the rural buffer about the restriction on their property, one of the things we discussed is we would revisit the two-acre minimum. Over time, the two-acre minimum produces exactly what Ms. Benson said,just a two-acre parcel property, unless the land can't perk. Staff inentions that you're going to be working on something that actually looks at creating a true flexible development option for lots in the rural buffer area as to a subdivision in a band around Chapel Hill and Carrboro. I would hope that we see that in the near future as opposed to the distant future. The other thing has to do with what all the neighbors were talking about, which is groundwater. I don't remember the name of the subdivision, it was probably about five years ago, the one on Arthur Minnis Road, where it goes from pavement to dirt. The neighbors were very concerned about the effect of the subdivision on their groundwater, on their wells. One of our responses was to hire a staff person full-time to study groundwater in Orange County. And here we are, I don't see that we've made any progress in providing any report or methodology for reviewing development impacts on well usage, maybe there is no update to provide. Maybe that's the answer. We do have places where we have policies in place if there are impacts from a commercial use or from something we did. I just don't think we have adequately addressed the concerns that people in rural areas have about subdivisions that go in next to them in a time when water is becoming more scarce. Basically, I feel like I sit up here and I listen and I empathize, but I'm not sure we're doing anything to help people. I would hope that we can do something a little more proactive, whatever it may be. Commissioner Gordon: I am not anxious to revisit the rural buffer. I think we've done reasonably well in the rural buffer. There are a lot of other things that I think take priority. Maybe we'll eventually get to reconsidering it, and I think it's worked well and I don't think we should rush to reevaluate it. Chair Pelissier: There is one item in the covenant that I forgot to express my concern. I'm not sure I support the square foot size of the house of 3,000 square feet. I know it's a boilerplate, but I don't know if that's the intention here. I'd also like to just say something to what Commissioner Jacobs had said about water. I was on the Commission for the Environment some years ago when we did have a geophysicist on the board who had actually done studies in Orange County. And one of the lessons I learned from him was, as one of the presenters said tonight, that there are little pockets and this fractured rock. He said that the most important thing to do and that some counties do it is to zone your land according to the recharge rate for that area. There is a study that tells us about the water recharge rate, and that is something that can give you guidance. That would require looking at zoning according to the water for that area of the county. I don't know if we're ready to go there, but that's what was mentioned. We need to assure citizens that they have water for the development there. Commissioner McKee: In response to the last comment, I want to make sure that we're very careful that we don't micromanage ourselves into a taking of property. Chair Pelissier: I'd like to entertain a motion to "refer the matter to the Planning Board with a request that a recommendation be returned in time for the November 20, 2012 BOCC regular meeting, and Adjourn the public hearing until November 20, 2012 in order to receive the Planning Board's recommendation and any submitted written comments." A motion was made by Commissioner Hemminger, seconded by Commissioner McKee to refer the matter to the Planning Board with a request that a recommendation be returned in time for the November 20, 2012 BOCC regular meeting, and adjourn the public hearing until November 20, 2012 in order to receive the Planning Board's recommendation and any submitted written comments. VOTE: UNANIMOUS 2. Zoning Atlas Amendment— To review an application to rezone approximately 14 acres of a 36 acre parcel of property located at 9925 NC Highway 57 from Agricultural Residential (AR) to NC Highway 57 Speedway Area Rural Economic Development Area (REDA-CZ-1) for the purpose of developing an enclosed mini self-storage facility with accompanying accessory uses including office space, a retail office selling boxes and packing supplies, and a truck rental area. Michael Harvey made reference to the PowerPoint presentation. This is near the go-cart track on NC 57, which is currently for sale. The Orange County Speedway is also nearby. This proposed use is consistent with the land uses that are anticipated within the adopted NC 57 Speedway Area Small Area Plan that was adopted in 2007 by the County Commissioners. This land use is listed as a permitted use. The applicant is in a position where he needs some guidance from the County Commissioners before moving forward. The abstract identifies the concerns related to this project and the staff needs direction from the Board. There will be approximately 400 individual storage lockers. The applicant is proposing the installation of a land use buffer. There is also some transportation planning concerns. Staff is asking the Board to give necessary feedback on this issue. STAFF COMMENTS: - Land use consistent with recent REDA-CZ-1 district amendment - Approved Small Area Plan envisioned this as an acceptable land use in the area - Staff is concerned over the lack of well for the site and recommends the applicant revisit this matter - Erosion Control has expressed concern over proposed storm water plan - Transportation planning comments will need to be addressed - Staff will need direction on the proposed land use buffer modifications Commissioner Yuhasz informed the Board and the public that he did represent Mr. Chandler during the time of the development of the NC 57 Small Area Plan and that representation ended when he became a County Commissioner. He has no interest in this particular project. Commissioner Foushee made reference to toilet facilities and that the applicant has been made aware of this condition and expressed reservations. She asked what needed to be done so that this does not continue to be a concern. Michael Harvey said that Orange County Environmental Health will review the proposal, and staff can provide additional information once it becomes available. He understands that it will not be an issue to have toilet facilities just for staff use and not for the public. The resolution of this issue will be provided in writing. Commissioner McKee said that his only concern is the lack of well water and adequate bathroom facilities. Chad Abbott, with Summit Consulting, said that the applicant and staff will reevaluate this issue and will ask Planning staff to work with him to secure the necessary written responses. Commissioner Yuhasz said that part of the property is on the northeast side of Mile Branch and asked if there has been any investigation of a well/septic system in that 12 acres. Chad Abbott said that the land does not perk, but there are alternative systems. Commissioner Hemminger said that she has a lot of concern about the storm water. She asked what was being proposed. Michael Harvey said that the initial review of the site plan with Erosion Control did not turn a favorable response in terms of storm water. The water runoff will be significant. Chad Abbott said that there has not been time to design the storm water control yet. He made reference to sheet c-5, which has storm water calculations. He said that the runoff is proposed to be caught at Mile Branch and NC 57. Commissioner Hemminger said that she has concerns about needing a well, not just for bathrooms, but maintaining the aesthetics of the facility, as well as the safety. Commissioner Gordon requested some additional materials. She made reference to access to the facility and the turn radius. She has concerns about this. Commissioner Yuhasz made reference to the buffer and the adjoining property. He said that the property to the southwest has the same soil characteristics, presumably. He said that this suggests to him that this property will never be developed as a residential property. He thinks that it is not necessary to provide this kind of buffer against property that is not actually going to need it. He suggested showing some flexibility with regard to the buffer requirements. Commissioner McKee said that the Board should keep in mind that this is an economic development area. He does not see any issues that cannot be overcome. He agrees with Commissioner Yuhasz about the buffers. This is not a general use area. He said that the soil is not very amenable to perking. This property will probably not be used for any use if not this type of use. His said that this is a proposal for low-impact economic development and it is the type of business that he would like to attract to these areas. Commissioner Foushee echoed Commissioner McKee's comments. Andrea Rohrbacher said that storage areas generate a lot of waste and there needs to be some mechanism to dispose of things on-site. Secondly, she echoed Commissioner Hemminger's concerns over the water. She said that units need to be hosed out from time to time. There should be a mechanism for this and she does not think that a pressure washer is viable for this. Larry Wright said that he would like for the applicant to consider looking at an area for solid waste disposal. He also supports Commissioner McKee's viewpoint. Chad Abbott made reference to the transportation comments and said that he would like to see how DOT would respond to some of these comments. He said that it would be best to push back the entrance as far away from the intersection of NC 57 as possible because of the potential truck traffic. He will provide written responses to the comments from staff. He said that this use fits this site because the soil does not perk and not many other uses could be placed here. Commissioner Hemminger said that she wants this project to succeed, but there are many issues that were not covered in the documentation the Board received (i.e., traffic, storm water runoff, etc.). She just wants it to be the best possible project and have it succeed. She feels like the application is disjointed. Michael Harvey said that this was supposed to be a negotiable site development process. There are several concerns of staff and there are issues that need to be addressed. He said that the applicant is seeking the Board's guidance on what should come next and he thinks it would be perfectly reasonable for the Board to ask and provide direct guidance on what should occur next and allow the Planning Board to continue this review at the October meeting. Commissioner Jacobs said that he is glad this proposal is coming forward. He said that the next presentation should have the staff concerns and the responses from the applicant. He is more interested in having buffers along NC 57 than on other parts of the property because these facilities are not very attractive. He suggested having some bullet points come back to the Board. Chad Abbott said that he is certain that the applicant has addressed the storm water and the traffic/fire and turn radius issues. The big item is the buffer, and he needs guidance on this. He said that the applicant will put in a well if needed. He said that the staff-requested buffer is very expensive. Commissioner Jacobs said that all of this needs to be put in writing. Michael Harvey said that the Board has some options - identify areas the applicant needs to address, adjourn the public hearing to a date and time certain asking the applicant to submit written responses to the issues, asking the Planning Board to review the project, and asking the Planning Board to continue the dialogue at the October meeting. He said that there is information that is lacking and everyone is frustrated with that. Chair Pelissier said that she has heard that the Board really does want a well on this site. Regarding the buffers, she thinks that there should be some flexibility. She said that all of the storage facilities that she has seen around here do not have buffers. She would not want to put restrictions on this project when other similar projects did not have the same restrictions. Commissioner Hemminger said that she would like to keep this process on track and come back at a September meeting. Larry Wright asked the Board to provide some options for the buffer for the Planning Board to discuss. Commissioner Yuhasz said that he would support the small buffer on the perimeter as shown, as well as the clustered buffer. Chair Pelissier said that the Board is happy with the proposed buffer. Commissioner Gordon said that she does not agree with the proposed buffers. She said that she would still like to see the Planning Board comments. She would like to see a summary come back on September 1 gtn A motion was made by Commissioner Jacobs, seconded by Commissioner Gordon to seek further clarity, get responses back in writing and come back at the September 18th meeting, and to use that meeting to provide further direction to the applicant and Planning Board regarding the Commissioners' preferences on the items that have been identified as areas of concern and that are addressed in writing by the applicant and by appropriate agencies; and to adjourn the public hearing until September 18th to allow staff and the applicant to bring forward the written requests and information as required by this meeting. Commissioner Yuhasz said that this process and the need to get feedback from the County Commissioners points to the possibility that they may not want to limit conditional use applications to the Quarterly Public Hearings. If there is going to be this kind of month-to-month bringing something back, it might be more appropriate to accept conditional use applications on a more frequent basis. Commissioner Gordon said that she objects to that suggested change. VOTE: UNANIMOUS A motion was made by Commissioner Foushee, seconded by Commissioner McKee to target a November 20th decision point and to have a recommendation by the Planning Board. VOTE: UNANIMOUS 3. Unified Development Ordinance (UDO) Text Amendment(s): To review government-initiated amendments to the text of four sections of the UDO in order to adequately address the development of solar arrays within the county• Michael Harvey made reference to page 10 of the agenda packet. Under Section 5.1.2 of the Ordinance, there are references to uses that are permitted and land use development standards. He read Subsection J, "electrical substations, switching and metering stations and associated transmission lines, where incoming voltage does not exceed 100 kilovolts (kv). (See Section 5.9.2)". He said that Section 5.9.2 is the appropriate section where this type of development is located. There are three amendments to address the inconsistency. The proposal is to establish an accessory use process where residential and non-residential land uses can obtain a zoning compliance permit to allow for the development of a solar unit for utility needs. This will be approved by staff based on guidelines. If the guidelines are exceeded, the recommendation is for it to go to a Class B Special Use Permit (Board of Adjustment and Planning Board). If a public utility is proposed, it will be a Class A Special Use Permit process (County Commissioners in a Quarterly Public Hearing). This ordinance provides guidance on permitting processes. He made reference to the yellow sheet, which was a memorandum from the Commission for the Environment with comments regarding the amendments. Commissioner Jacobs asked for more detail on the Commission for Environment's concerns about the permitting process. Michael Harvey said that one of the concerns is that solar arrays cannot be located in the front area of a property. Staff is consistent with the current development practice in the County. If there is a desire to modify existing limitations to allow for more flexibility of the arrays, there would have to be a separate amendment. Commissioner Jacobs said that it seems like the Commission for the Environment is proposing another step. Michael Harvey said that if the regulation does not work, the Board of Adjustment should not be put in the position to activate the ordinance every time it does not work. The ordinance needs to be amended to make it work. Staff should also not be allowed to waive the provisions of the code as it sees fit. Either the code is amended to address the issue or the standard is kept the way it is. Commissioner Jacobs said that he would like to see the reasons against accessory uses in a front yard and let the Planning Board decide whether it wants to preclude having a solar array in a front yard. Commissioner Jacobs asked clarifying questions, which were answered by Michael Harvey. Commissioner Yuhasz made reference to page 23 and said that he is trying to get a sense of the size of some of the elements. He asked why these would have to be screened if air conditioning systems are not screened. He made reference to item `g' on page 23 and said that he would like to know how "the proposed array will not impact the existing land use" will be defined. Michael Harvey said that there is required landscaping depending on the type of development and project. There cannot be removal of any required landscaping or condition consistent of the site based on the land use. Commissioner Yuhasz asked that this be clarified in the document. Commissioner Yuhasz asked why the area with the solar array is considered impervious surface. Michael Harvey said that this is based on state classification and the County is bound by this determination. Commissioner McKee said that his recommendation is that the County not allow solar arrays in front yards. Commissioner Gordon made reference to item `j' on page 23 and said that if it is unsafe, it should be fixed, but she will leave it up to staff for a recommendation regarding if it is not in use for six months. Chair Pelissier echoed Commissioner Yuhasz' comments. She said that she would like to have more flexibility on the front yard option and not have such a stringent viewpoint on the separation of commercial and residential. She asked about the 10 kilowatt versus the 100 kilowatt. Michael Harvey said that this requirement is based on state and federal tax credits. Tony Blake from White Cross said that Duke Power in cooperation with the State Public Utilities Commission, accepts 20 kilowatts as the standard for a residential customer. He said that he thinks the 10 kilowatt limit is arbitrary. Regarding the size, technology is changing rapidly, so smaller panels are able to generate more electricity. He thinks that the ordinance should be looser and able to evolve with the technology. Pete Hallenbeck said that he has a 7500 watt solar panel array for use at his house. He said that a 10 kilowatt array is approximately a 50-foot long by 12-foot wide footprint. It would stand approximately 9-10 feet tall. The 15 feet came from the fact that you may wish to raise the panels up to maintain the ground underneath. The 10 kilowatt limit comes from the fact that with Piedmont Electric, they will only give net metering if you are 10 kilowatts or less. He suggested that instead of having a kilowatt specification, then it could be the limit from the power company where there will be net metering. With regard to item `j' on page 23, he would suggest that it could be cleaned up to say that if it is not working for six months, it has to be dealt with, and if it is unsafe, it should be dealt with faster than six months. Larry Wright said that the front yard restriction does not conform to each situation. He suggested looking at this because there is a lot of property in Orange County that is rural. A motion was made by Commissioner Jacobs, seconded by Commissioner Hemminger to receive the proposed amendments as detailed in this abstract and attachments; refer the matter to the Planning Board with a request that a recommendation be returned to the BOCC in time for the November 8, 2012 BOCC regular meeting; and adjourn the public hearing until November 8, 2012 in order to receive and accept the Planning Board's recommendation and any submitted written comments; with the additional stipulation that the Board of County Commissioners receive information on the rationale behind restricting accessory uses in the front yard, and that this be part of the discussion when a recommendation comes back from the Planning Board. VOTE: UNANIMOUS Commissioner Yuhasz suggested that the front yard issue be addressed particularly with regards to the size of the lot. CLOSED SESSION A motion was made by Commissioner Hemminger, seconded by Commissioner Yuhasz to go into closed session at 10:03 p.m.: 1. Per N.C.G.S. 143-318.11(a)(3): To Consult with the Attorney to protect the attorney-client privilege. 2. Per [N.C.G.S. 143-318.11(a)(5)] To establish or instruct the staff or agent concerning the negotiation of the price and terms of a contract concerning the acquisition of real property 3. Per [N.C.G.S. 143-318.11(a)(4)]: To discuss matters relating to the location or expansion of business in the area served by this body. 4. Per [N.C.G.S. 143-318.11(a)(6)] : To consider the qualifications, competence, performance, condition of appointment of a public officer or employee or prospective public officer or employee. VOTE: UNANIMOUS RECONVENE INTO REGULAR SESSION A motion was made by Commissioner Yuhasz, seconded by Commissioner Hemminger to reconvene into open session at 11:10 p.m. VOTE: UNANIMOUS C. ADJOURNMENT OF PUBLIC HEARING A motion was made by Commissioner Hemminger seconded by Commissioner Yuhasz to adjourn the meeting at 11:14 p.m. VOTE: UNANIMOUS Bernadette Pelissier, Chair Donna S. Baker, CMC Clerk to the Board