"(e) In accordance with Section 15-164, whenever the Board of Commissioners approves a sewer extension through the assessment authority of G. S. § 160A-216 through -238, all sewer service lines from abutting dwellings and businesses shall be connected to said sewer main within twenty-four (24) months of such line being placed in service.  In its discretion, the Board of Commissioners may include as part of the contract cost for such extensions the cost of connecting all residents adjoining such lines.  A connection fee shall be required as set forth from time to time by the Board of Commissioners and listed in the manual of fees and charges maintained in the clerk's office.  Such fee shall be charged, if applicable, in addition to the charge in the foregoing paragraph (d)."

VII.   New Business.

1. Copies of the proposed budget and fire district tax for the Highlands Fire Department had been distributed with the agenda package; the proposed rate was 0.012.  Bob Houston was present to answer any questions.

MOVED BY COMM. JAMES, SECONDED BY COMM. PATTERSON, AND UNANIMOUSLY CARRIED TO APPROVE THE BUDGET AND FORWARD IT TO THE COUNTY BOARD OF COMMISSIONERS.

2. Copies of a resolution had been distributed, as discussed at the previous meeting, which would replace the resolution adopted on January 4, 2006, requesting the County Commissioners to appoint two members from the ETJ to the Zoning Board; the Town Administrator explained that the new resolution was necessitated by the refined population estimates with the result that the number of representatives would be one on a five-member Board.

MOVED BY COMM. PATTERSON, TO ADOPT THE RESOLUTION AND SEND IT TO THE COUNTY COMMISSIONERS.  Town Attorney Bill Coward was present, however, and said that he would like to discuss the resolution in closed session as it could impact the pending lawsuit with Macon County.  Comm. Patterson withdrew her motion.

MOVED BY COMM. PATTERSON, SECONDED BY COMM. ROSS, AND UNANIMOUSLY CARRIED TO TABLE THIS MATTER PENDING FURTHER REVIEW BY THE TOWN ATTORNEY.

3. Georgia Sanders was present and explained that she had heard that the Board was considering changes to Town property that could affect the ABC building.  She said that the building needed major renovations due to inadequate office, display, and storage space, but she did not want to use ABC funds if the Town had plans for the building; she wondered if she had the Board's blessing to contact State ABC officials and discuss such renovations.  Comm. Ross explained that the Architectural Study would address the ABC facilities, as well as all other property on the Town Hall block; he suggested that she proceed with contacting ABC officials and said that the consultants selected would be interviewing her about the needs of the ABC building as well.

4. Each Board member had received two amendments proposed by the Planning Board:  amendment of the Subdivision Ordinance's variance provisions from "reasonable use" to "good cause shown," as discussed in previous meetings; and amendment of the Zoning Ordinance to provide regulations for slope development.  Comm. Ross said he would like for the amendments to be sent to the Town Attorney for review, and the Board agreed to place this on the agenda of the April 19 meeting.

5. MOVED BY COMM. PATTERSON, SECONDED BY COMM. MARSH, AND  UNANIMOUSLY CARRIED TO GO INTO CLOSED SESSION PURSUANT TO G. S. §143-318.11(A)(3) TO CONSULT WITH TOWN ATTORNEYS BOB LONG AND ANDREW PARKER ON LEGAL MATTERS CONCERNING OLD EDWARDS INN'S REVISED SUBDIVISION PLANS.  The Mayor and Board of Commissioners, Bill Coward, Andrew Parker, Bob Long, and the Clerk left the Conference Room and met in the adjoining office.

Bob Long reviewed the applicable law concerning this matter and advised the Board of its duties under such law.

MOVED BY COMM. MARSH, SECONDED BY COMM. ROSS, AND UNANIMOUSLY CARRIED TO GO INTO OPEN SESSION.  The Board and others present then returned to the Conference Room.

6. The Mayor explained that the Board was here to consider two revised plans for Old Edwards Inn.  He said that there had been a lot of talk and he wanted to clear the air; the Board was present to hear the evidence presented tonight.  He asked each Board member if they could listen to the evidence with an open mind, and each Board member individually indicated they could.

Craig Justus stood to present the plans and the Mayor asked him if he would consent to be sworn.  Mr. Justus said that in his opinion this was not a quasi-judicial proceeding or a matter of discretion, it was a ministerial matter, and this was how most local governments treated subdivision regulations; the question was whether the applicant met the standards or not.

Bob Long told Mr. Justus that he had advised the Board, pursuant to a ruling in Guilford Financial v. the City of Brevard, in which Mr. Justus had been involved, that this was a quasi-judicial proceeding.  He said that he had also advised them that they should decide based on the evidence presented tonight. 

Mr. Justus distributed copies of several cases, including Samco v. New Hanover County, and said he disagreed; he suggested that the record show that they were not "hung up" about swearing people.  The package also included the minutes of the March 1 meeting and a transcript from the court recorder present.  He then reviewed the plans in detail, beginning with the Satulah Village South plan.  He said that the primary issue raised at the last meeting had been the density, as well as the question of open space and small lots.  He noted that the houses had been grouped closer together and there was more open space; a stand of trees had been preserved in the southwest corner, and the Lot 4 and 5 had been "squnched."  He said there were not many natural features, but open space had been provided along the stream bed, along Satulah Road and the subdivision road, and around a water feature in the northern portion of the property; the amount of open space had been doubled and the lots had been made smaller, which he believed addressed the concerns of the Board.  He said that the density had not been reduced, but he believed the Ordinance allowed seven units per acre, which would permit 21 lots; only 16 were proposed.  The common areas, totalling 47%, would be owned by a homeowners association.  Total built-upon was 24%.  He noted that the Town Engineer had expressed no problems with the previous plans other than a recommendation that the road remain private.  Stormwater would be channelled to the water feature, and although the Town did not have any stormwater rules in effect Bronce Pesterfield, the engineer for the project, had assured the Board at the previous meeting that post-construction stormwater would not exceed pre-construction runoff.  He believed plans were in compliance and he asked for approval.

The plan submitted indicated that "all roads and driveways will be constructed of pervious materials."  Comm. Patterson asked Bronce Pesterfield to describe the pervious pavement to be used. He said the pavement would be placed over a base of fine aggregate, coarse aggregate, and collection pipes which would take stormwater to the water feature, where a slow-release structure would retain stormwater from a 25-year storm.  He said the freezing should not affect it and that he was familiar with some pervious pavement in use in Asheville.  Asked by the Town Administrator if the pavement was 100% pervious, he said that he did not know.  Comm. DeWolf asked how its effectiveness was measured on a slope; he replied that there would be a reverse crown on the pavement and water would be drawn straight down. 

Mr. Justus said that the plan met all the standards of the Town in that lot sizes were smaller and had been bunched together, with the difference moved into common area.  He said that the setbacks of five feet from the property line and 25 feet from the right-of-way line established where lots were located.  Comm. Patterson noted that the Ordinance required a ten-foot setback from adjoining property not located in the cluster development, and some house footprints scaled out to only five feet.  Mr. Justus said that the plans had been submitted in December and this had never been noted before by Staff or Planning Board.  The Town Administrator said that, for the record, he had not had the opportunity to review the subdivision plats, which had been submitted only minutes prior to this meeting, only the conceptual plans.  He said he understood the configuration of the house footprints might change, but that they would not exceed the area shown on the plan and would be required to meet the setbacks when permits were applied for; Mr. Justus said that was true.

Mr. Justus then presented the plan for Satulah Village West.  He said that a couple of the lots had been moved and reduced in size to create more contiguous open space, and areas had been set aside along the road right-of-way as common open space.  He also noted that a greenways trail would be located between Lot 11 and 12 and would go around a pond to the south.  A homeowners association would maintain the open areas and the roads would remain private.  Total common area was 58%, and total built-upon was 19%; density allowed 53 lots, but only 32 had been proposed.

Comm. DeWolf asked about an apparent overlap of easements between the 60-foot right-of-way of NC-106 and the 40-foot right-of-way of the subdivision road.  Mr. Pesterfield said that he had discussed this with the D. O. T. and he was not sure they claimed the 60-foot right-of-way shown on the plan; he believed he could get an encroachment permit for utilities in NC-106. 

Comm. Patterson asked how long the pervious pavement had been recognized by the State with respect to built-upon.  Mr. Pesterfield said that the D. O. T. had accepted pervious pavement as an experimental alternative.  It was also included in the definition of "built-upon" in 2004 stormwater regulations.  Mr. Justus said that the plans represented a 19% built-upon.  Mr. Long asked either of the plans would meet the 24% built-upon limit if the road areas were included.  Mr. Justus said no, there would be too many impervious surfaces; however, he said that pervious pavement had been approved by the D. O. T. and the plans were based on Mr. Pesterfield's experience as well.  Comm. DeWolf asked if maintenance would be required for the pervious pavement; Mr. Justus said this would be emphasized in the homeowners association agreements, and Mr. Pesterfield said that sweeping would be used to prevent the pavement from getting clogged.  Mr. Justus distributed copies of what appeared to be a portion of the N. C. Administrative Code that he contended allowed pervious pavement; Mr. Long noted that it expired in 2011.  Comm. Ross asked if there would be any slow-release structures.  Mr. Pesterfield said that a weir system would provide storage in pipes and in the pavement itself, which would more than likely meet a 25-year storm.  The Mayor pointed out that some problems had been noted about the setbacks, and Mr. Justus assured the Board that the development would meet the ten- and 25-foot setbacks.

Mr. Justus then reviewed several cases that he believed showed that the plan complied with the Ordinance, including Samco v. New Hanover County, Guilford Financial Services v. the City of Brevard, Capricorn Equity, the State v. Tennet, and Robins v. the Town of Hillsborough.  He said that the cases showed this was a ministerial decision and the Board had no discretion to turn the application down, that ambiguities should be construed in favor of the property owners, that plans could not be denied on a whim, and that the party is vested at the time of application.  He said he believed the plans were in compliance with the standards and he was entitled to a permit.  He then asked Mario Gomes to describe the money that had been invested in the projects.  Mr. Gomes said that income lost on investments was $33,000 per month, and seven customers had been potentially lost, at a loss of $180,000 per unit or a total of $1.25 million in profit; $55,000 had been spent in plan revisions and legal fees were $20,000 and still continuing.  The contractor had already been selected and had plans to start, and if approved would begin in three weeks.  Mr. Justus said that at the March 1 meeting there had been considerable discussion about density.  He said that he did not want a "knock-down drag-out," and although he believe the plans were in compliance, if there was something else they could do, please tell them.  Comm. Patterson asked again about the pervious pavement; would it be constructed up-front, or later?  Mr. Pesterfield said it would be installed later, after construction was complete.  She asked if the staging would involve having to un-compact the areas under the roads before installation.  Mr. Justus submitted copies of the Mill Creek Cottages subdivision plat, which he said had been approved by the Board last year as a cluster development; the property was zoned B-3 and contained four houses per acre, which he thought set some precedent.  Comm. DeWolf asked how the number of units was determined on these projects; Mr. Justus replied that it was driven by market and by a review of regulations.

7. The Board then considered a proposed amendment of the Zoning Ordinance that the Town Administrator had been asked to draft at the March 29 meeting, and also as discussed at the March 1 meeting, limiting single-family residential density to two per acre in the underlying B-3 Zoning District; copies had been distriuted with the agenda package.  The Board agreed by consensus to ask the Town Attorney to review the amendment and to place it on the agenda of the April 19 meeting.

8. The Town Administrator said that two years ago the Board had agreed to designate one of the weeks for the annual Spring Cleanup as a week to instead clean streets in the downtown area; he recommended doing so again.

MOVED BY COMM. PATTERSON, SECONDED BY COMM. ROSS, AND UNANIMOUSLY CARRIED TO DESIGNATE THE WEEK OF MAY 22 AS SPRING CLEAN-UP, AND TO HAVE PUBLIC WORKS EMPLOYEES CLEAN THE STREETS IN THE DOWNTOWN AREA THE WEEK OF APRIL 24.

9. MOVED BY COMM. ROSS, SECONDED BY COMM. MARSH, AND  UNANIMOUSLY CARRIED TO GO INTO CLOSED SESSION PURSUANT TO G. S. §143-318.11(A)(3) TO CONSULT WITH TOWN ATTORNEYS BOB LONG AND ANDREW PARKER ON LEGAL MATTERS CONCERNING OLD EDWARDS INN'S REVISED SUBDIVISION PLANS, AND TO CONSULT WITH TOWN ATTORNEY BILL COWARD ON LITIGATION WITH MACON COUNTY.  The Mayor and Board of Commissioners, Bill Coward, Andrew Parker, Bob Long, and the Clerk left the Conference Room and met in the adjoining office.

A. Bob Long again reviewed the applicable law concerning this matter and advised the Board of its duties under such law.

B. Town Attorney Bill Coward briefed the Board on pending litigation with Macon County concerning proportional representation on the Planning Board and the Zoning Board; each Board member had received a draft of an answer which he proposed filing in the case.  The resolution requesting appointments to the Zoning Board was also discussed.

THE BOARD AGREED BY CONSENSUS TO GO INTO OPEN SESSION.  The Board and others present then returned to the Conference Room.

10.    When the Board returned to the Conference Room, Craig Justus noted that Mr. Long had requested information on pervious paving. He said that the applicant would be open-minded about whatever the Town wanted, and offered to use the same kind of pervious paving used at the child care center if that was preferable, since that was precedent; however, they were open to reasonable suggestions.

MOVED BY COMM. DEWOLF, SECONDED BY COMM. MARSH, AND CARRIED THAT, BASED ON THE PLANS THAT HAD BEEN SUBMITTED AND AMENDED IN THE HEARING, AND BASED ON THE EVIDENCE IN THE HEARING, THE BUILT-UPON, INCLUDING ROADS AND DRIVEWAYS, EXCEEDS 24%, AND, FOR THAT REASON ONLY, THE PLAT IS DISAPPROVED.  Comms. DeWolf, Marsh, Ross, and Patterson voted "aye," and Comm. James voted "nay."

Mr. Long asked if the Board wanted him to draw up formal findings and conclusions to reflect the motion.  Mr. Justus then said that he felt it was fair game to bring up the child care center; if pervious paving had been approved for them and not for his client, he said they were discriminating against them."  Kim Lewicki asked about the child care center; she understood that pervious pavement had been used and that it had not been counted as built-upon.  The Town Administrator was asked about the child care center and he said that he was not Zoning Administrator for the case and had not attended the hearing; he did not know whether the pervious pavement had counted toward the built-upon or not.  He noted also that that was a different Board and a different case.  Mr. Justus then asked for permission to consult with Mr. Long outside of the Conference Room for five minutes, and the Mayor declared a brief recess.  When they returned, Mr. Justus said that his client had the option to litigate or to come back.  He said it was his understanding that the child care center had been approved with pervious pavers, and he asked again how they had gotten approval for that.  He said his client was willing to do the same.

Zoning Administrator Larry Gantenbein was asked about the child care center, and he said that it was his recollection that Bob Wright, Director of the Upper Cullasaja Watershed Association at the time, had made the presentation of the child care center plans to the Zoning Board; three kinds of pavers were used as a DENR test program and he thought they were counted as impervious, although he could not recall specifically.

VIII. MOVED BY COMM. JAMES, SECOND BY COMM. PATTERSON, AND UNANIMOUSLY CARRIED TO ADJOURN.

There being no further business to come before the Board, the meeting was declared adjourned by the Mayor at 11:00 p.m.

                          ________________________________

                          Richard Betz, Town Clerk