THE BOARD OF COUNTY
COMMISSIONERS
DURHAM, NORTH CAROLINA
Monday, March 24,
2003
AGENDA
4:00 P.M. – 5:30
P.M.
Review of the Local Business Plan
for Mental Health
_______________________
5:30 P.M. – 6:00
P.M.
Review of the CIP Requests for the
NC Museum of Life and Science
_______________________
6:00 P.M. – 7:00 P.M.
Closed Session
The Board is requested to adjourn to closed session to give
directions to staff concerning the price and other material terms of a proposed
contract for the acquisition of real property, and to hear a report concerning
the investigation of alleged criminal misconduct pursuant to G.S. §
143-318.11(a)(5) & (7).
_______________________
7:00 P.M. Regular Session
1. Opening of Regular Session—Pledge
of Allegiance
2. Agenda Adjustments
3. Minutes
a.
November 4, 2003 Worksession Minutes
b.
November 25, 2002 Regular Session
Minutes
c.
January 13, 2003 Regular Session
Minutes
The
minutes were approved as submitted.
4.
Consent Agenda
a.
Street Annexation Petition—Tyndrum
Drive (Tyndrum Subdivision) (adopt the resolution to approve the addition of
Tyndrum Drive to the state’s road maintenance system subject to the
certification of eligibility by the appropriate officials of the NC Department
of Transportation);
b.
Property Tax Releases and Refunds
for Fiscal Year 02-03 (accept the property tax release and refund report as
presented and authorize the Tax Assessor to adjust the tax records as outlined
by the report. These are normal
recurring releases and refunds that are presented for your consent agenda);
c.
Budget Ordinance Amendment No.
03BCC000047—Social Services—To Accept Crisis Intervention Prevention (CIP)
Revenue (approve Budget Ordinance Amendment No. 03BCC000047 recognizing
additional energy administration funding in the amount of $165,939);
d.
Joint City-County
Appointment—Triangle Transit Authority (reappoint Mayor William V. Bell to the
Triangle Transit Authority); and
e.
Raleigh-Durham Airport
Authority—Federal Aviation Administration (FAA) Grant Approval (approve the
$3,564,848 FAA grant offer to the Raleigh-Durham Airport Authority).
Commissioner Jacobs moved, seconded by Commissioner
Heron, to approve items 4(a) through 4(e) of the Consent Agenda.
The motion carried unanimously.
5. Public
Hearing–Centex Homes, Applicant (Rezoning Case P02-25)
Centex Homes
will present to the Board of County Commissioners a request to rezone 133.3 acres located on the west
side of Grandale Drive and north of the Sedwick Road intersection. PIN 0727-01-36-7805 (TM 531-1-6) Request: RD (Rural District) to PDR 1.93; F/J-B (Planned
Density Residential-1.93 units/acre) F/J-B.
The proposal is in general conformance with the small area plan. Staff recommends approval citing general
adopted plan conformance. The Zoning
Committee of the Durham Planning Commission conducted a public hearing on
July 9, 2002 and voted 5-2 to recommend denial, citing school enrollment and
stormwater concerns.
The Board of
County Commissioners held a public hearing on the rezoning request on September
23, 2002. The Board continued the
hearing, but a date was not specified.
The public
hearing for this request was advertised on September 6 and 13, 2002 in the Durham
Herald-Sun.
The
public hearing for this request was re-advertised on March 7 and 14, 2003 in
the Durham Herald-Sun.
Resource Person(s): Frank
Duke, Planning Director
County
Manager’s Recommendation: The Manager’s recommendation is
that the Board hold the public hearing and approve the rezoning, if
appropriate, based on public comment.
Chairman
Reckhow opened the public hearing, which was properly advertised.
The
speakers signed for this item follow:
Allan
Ward—Spoke
in favor of the development. The
proposal is in place with current area development. He called for a rezoning that would protect the environment and
still allow the development.
The
following persons spoke against the development.
Lloyd
Redick—Runoff
has brought stormwater flooding to within 30 feet of his house. The lot sizes are too small and have been
extended into the floodplain.
Roger
Fortman—Infrastructure
cannot handle current runoff. Who will
pay to elevate the road and build a new bridge. Runoff—sediment, pesticides, and fertilizer—are a great concern. As stewards of the land, we should be
looking for ways to protect the land.
Floyd Diaz—Infrastructure
cannot handle more development.
David
Monahan—Public services are already over capacity. A large portion of the land is unusable, lots will be subject to
stormwater runoff.
Jim
Tepperberg—His apathetic neighbors have given up.
Lot sizes are too small; traffic is too heavy. He requested that the County purchase the Lowe’s Grove school and
transform it into a play park for the neighborhood.
Marilyn Link—Environmental issues should halt this development.
Bernt
Hienike—Stormwater protection costs will be excessive. Who will pay, the developer or the homeowner, when yards must be
protected by building walls or grading with more dirt?
Tracy Stark—Land is environmentally sensitive; lot sizes are too
small.
Liz Pullman—Stormwater
runoff is sure to increase in this area of the county. The street culverts cannot handle increased
capacity.
Carol W.
Young—7.5% change isn’t enough. The environmental concerns are too great for this
development. Larger lots with more
tree-saving is needed.
Brett
Hiemenz—Local elementary schools are over
capacity.
Christine
Davies,
Parkwood community—no more development until roads are improved and schools are
no longer crowded.
Denise
Dawson—gave
her time to Carol W. Young
Tad
Dawson—Withdrew
his name.
Ginny
Dadek—New
ordinances need to be enacted to protect from stormwater damage. This is an increasing problem. She called for a moratorium on development
in this area until new FEMA maps are made.
She spoke of existing flooding in the area.
Jack
Markham Jr.—Asked
the Commissioners for a deferment until the neighbors can be consulted and
perhaps an agreement be reached. He
noted that open space would be provided that doesn’t exist in neighboring
subdivisions. Drainage swells do
exist. Only two lots go into the
floodplain. None have been purposefully
extended into the floodplain to increase lot size.
Chairman
Reckhow acknowledged Mr. Markham’s request to defer the rezoning request. She asked that the deferral be a short
one. She suggested that the request
exceed the requirements of the ordinance, given the sensitivity of this land.
Chairman
Reckhow asked Mr. Roger Fortman and Ms. Carol Young, to make comments for the
neighbors. Mr. Fortman and Ms. Young
asked that the Commissioners not delay this much longer. April calendars are full for them, the
meeting of May 27 would work better.
Commissioner
Heron spoke negatively about massive grading to move earth to build on the
steep slopes and around the streams.
Mr. Markham assured there would be no massive grading.
Commissioner
Bowser stated he could not vote on a project with homes in a floodplain. Problems in later years will mean expensive
fixes by homeowners.
Chairman
Reckhow suggested that lots 134-138 should not be built on. Lots 190-212 are on very fragile
territory. For Commissioner approval,
this must be addressed.
Commissioner
Cousin stated his concern that area schools are over capacity and could not
tolerate another neighborhood.
Commissioner Bowser moved, seconded
by Commissioner Cousin, to defer the item until such time the alterations can
be made and the developer can meet with the neighbors to eliminate the concerns
presented. The caveats addressed would
be translated to committed elements.
The motion carried unanimously.
In September 1995,
the Federal Communications Commission (FCC) adopted the 13th Report
and Order, which, among other things, allowed cable operators to adjust their
rates on an annual basis using FCC1240, taking into consideration past and
anticipated future external costs. On
October 1, 2002, Time Warner Cable submitted FCC1240-Basic Cable Service Tier
and FCC1205-Equipment and Installation Charges documents, seeking a rate
increase for basic cable television service, installation, and equipment rental
for the 2002 calendar year. Through the
Triangle J Cable Regulatory Consortium, Durham County has been working with
Consultant Robert Sepe of Action Audits.
Mr. Sepe reviewed these filings, evaluated the information with respect
to conformance to FCC rules, regulations, and publications, and reviewed
documents gathered by the County.
Resource Person(s): Robert Sepe, President, Action
Audits, LLC
9. Proposed Stormwater Regulations
The Department of Environment and
Natural Resources has proposed new stormwater regulations which will have a
direct impact on Durham County if adopted.
The regulations are proposed under State law for counties in urbanized
areas that do not fall under the Federal law requirements for stormwater
management. The Federal Phase II
stormwater requirements apply to counties and smaller towns which own and
operate stormwater systems and do not currently apply to the part of Durham
County outside the municipal limits.
There are 33 counties in urbanized areas which would be covered by the
new regulations; including Alamance, Durham, Orange, and Wake.
These new proposed regulations present a
significant unfunded mandate for counties in North Carolina. The State in its fiscal note has estimated
that the cost of these regulations to be $17,420,644.00 for counties and
municipalities across the State.
However, since they opine that regulations they have already made cost
the counties $7,087,753.00, the net cost of the new regulations is
$10,332,891.00. The State has further
stated that it cannot separate the Federal mandated costs from the new State
program, and therefore include both in these figures. The State’s cost estimate for the portion of the County outside
the city limits for the cities is $131,411.00 per year. However, since some of the required programs
are countywide, e.g. sedimentation and erosion control, Health Department
mandates, the cost will probably be higher.
The cost for the entire County, including the municipalities, is
estimated to be $831,229.00 per year.
It should be noted that the State is apparently using a low-end
number. A representative of the
Association of County Commissioners has cautioned that the cost may be as much
as $243,885 per year. This figure was
determined using Federal cost estimates for compliance. Much of this cost will probably be in
mapping of stormwater systems which is a new requirement for the County.
The State has attempted to justify these
new regulations by stating that the Federal government’s intent was to regulate
counties when it enacted the Federal stormwater regulations. However, this has been contradicted by the
Regional Administrator for the Environmental Protection Agency and by the EPA’s
guidance on Federal and State-Operated MS4s.
The North Carolina Association of County
Commissioners has held several meetings with representatives of the Department
of Environment and Natural Resources (DENR) in an attempt to work jointly on
mutually agreed upon regulations whereby the counties and the State could work
in partnership. Those discussions have
ended with the State taking a position which is adversarial to the counties in
the State.
The County Attorney believes that there
are serious legal issues with the proposed draft regulations. The regulations require counties to adopt
certain specified ordinances which require the approval of DENR. This presents a serious separation of powers
issue under the North Carolina Constitution.
Here an appointed administrative body is requiring an elected
legislative body to enact certain laws over which it holds a veto. One of these ordinances includes a
requirement to enact an ordinance to regulate the application of
fertilizer. This apparently would
regulate both farmers and homeowners.
The legislature has previously indicated that the policy of the
legislature is to prevent counties from regulating farming. This has been done explicitly in preventing
county zoning ordinances from regulating farm activities.
A second ordinance, which is required of
certain coastal counties, would mandate the implementation of a pet waste
ordinance. This raises serious
questions regarding a Constitutional prohibition on local acts of the
legislature on health questions. If the
legislature does not have the authority to impose this requirement, it is
difficult to envision that the legislature could delegate this nonextent power
to an administrative agency.
There is also an issue as to whether
DENR has authority to enact regulations requiring mandatory stormwater
regulations of counties which are not regulated by the Federal government. G.S. § 143-214.7 provides for a voluntary
program of stormwater control based on a model program developed by the
State. Instead of a voluntary program,
DENR is trying to mandate its program.
This appears to be contrary to the express provisions of the statute.
Two final issues exist in the
regulations. The first is a requirement
that the county require deed restrictions and easements for all new
construction. Such a restriction raises
takings issues and issues related to the legislative authority of counties to
require these property rights be given.
The second is the apparent requirement
that a county get a permit from DENR to exist.
The permitting requirement is not based on ownership of stormwater
systems as is the Federal rules. The
permitting requirement is solely based on the fact that a county exists in
North Carolina. This appears to exceed
the delegated authority given to DENR and intrudes on the power of the
Legislature to create counties.
These proposed rules are currently in
the public hearing process. It is
requested that the County Attorney be allowed to present comments in opposition
to these rules in conjunction with the North Carolina Association of County
Commissioners. Additionally, the
Association has indicated that legislation may be introduced to prevent DENR
from adopting these rules. If the rules
are enacted as presented, it is further requested that the County Attorney be
authorized to file an action contesting the authority of DENR to regulate
Durham County.
10. Board and Commission Appointments
·
Adult Care Home Community Advisory
Committee
·
City-County Appearance Commission
·
Durham Technical Community College
·
Environmental Affairs Board
·
Nursing Home Community Advisory
Committee
·
Open Space and Trails Commission
·
Planning Commission
·
Public Health Board
·
Transportation Multi-Jurisdictional
Advisory Board
The Commissioners made the appointments by ballot.
THERE BEING NO FURTHER BUSINESS, THE
MEETING WAS ADJOURNED AT 10:15 P.M.
