The county commissioners on Tuesday voted 3-1 to approve the board order for the controversial Pine Forest development.

The board order covers the findings and actions of the commissioners in approving a rezoning request from MHK Ventures Inc.,the developer of the 1,800-acre project on N.C. 211 southeast of West End. The document clears the way for MHK to take the next steps toward development.

"This offers more protection for the property than it has now," Commissioner Jimmy Melton said in reference to the long list of standards and conditions attached to the zoning change.

Commissioner Tim Lea, who cast the dissenting vote, tried to amend the order to tighten some of the conditions, but his motion died for lack of a second.

"My preference is to stick with the original board order," said Commissioner Craig Kennedy, who made the motion for approval.

Melton made the second, and Chairman Nick Picerno joined Kennedy and Melton in voting for the motion.

Commissioner Larry Caddell was recused because of his previous long association with the town of Carthage, where he was mayor when a new water plant was being planned. The Carthage water system draws water from Nicks Creek, which has headwaters in the Pine Forest acreage.

The commissioners deferred action on the order at their previous meeting. The delay was prompted by questions about a key condition prohibiting the developer from drawing water from Nicks Creek or other tributaries located on the property.

Of the total 1,799 acres, almost 1,500 acres lie outside the area covering by the rezoning. However, part of Nicks Creek is in those acres not being rezoned, and critics of the proposal questioned whether that difference could mean the developer could draw water from the non-rezoned area for use in the entire development.

'Wild Card Scenario'

The delay gave the planning staff and the county attorney time to confer with Professor Rich Ducker of the UNC-Chapel Hill School of Government about the legality of including in the order a land parcel not mentioned in the original rezoning application.

Ducker said state law does provide a precedent that could allow for a challenge. However, he also mentioned a "wild card scenario" in which the challenge could be denied by the court because the condition provided a "benefit" to the developer.

"In other words, if the developer has enjoyed the Planned Unit Development-Hamlet rezoning Pine Forest benefits of the development (with build out, etc.), it is possible that a court may hold that the developer would be prevented from raising an objection to an invalid clause in the board order," Ducker wrote in a memorandum on his finding to the commissioners.

Ducker went on to present an alternative solution, but not a popular one. He said that the developer could redo the application and include the remaining acres in the rezoning request. But this would mean starting the rezoning application process all over again.

MHK began work on the project about three years ago, and the final aspect of the project has spanned most of 2011. The public hearing before the commissioners lasted more than 11 hours and was continued into three meetings, including delays because of unforeseen factors.

Environmental Concerns

Opponents of the rezoning continued their criticism of the project with a presentation during the public-comment period at the beginning of the meeting.

Ruth Stolting, secretary of Save Our Sandhills (SOS), said the board order does "not adequately safeguard Nicks Creek from being drained by MHK - or any future owner." SOS is an environmental nonprofit that has vigorously opposed the rezoning of the Pine Forest land.

SOS was not the only critic. Other opponents raised questions about such issues as traffic, water availability and economic conditions.

"The obvious and only other water source available is Little River at the Dormie Club," Stolting said. "Since Little River was already drained by MHK in 2009, the capability to pump water from Little River is already in place.

"Keep in mind that the wastewater treatment plant at Pine Forest is to be designed to bring wastewater from the Dormie Club to Pine Forest. Therefore, it could bring water from Little River to Pine Forest for its needs."

Dormie Club, also an MHK development, fronts on N.C. 73 and is located close enough to Pine Forest that the developer proposes to build a sewer plant to serve both.

Stolting said David Rooks, the attorney representing SOS, had proposed a solution for closing these loopholes.

This issue was raised during the discussion later in the meeting, but County Attorney Misty Leland said the email from Rooks did not address the issue raised by SOS. Bob Stolting raised a point of order on her report, but the attorney said she did not recall any other emails from Rooks.

Picerno said he wanted to clear up the issue of property owner rights when it comes to withdrawing water. The law says that a property owner cannot be forbidden from drawing water from his or her own property. In this case, however, MHK has voluntarily agreed not to withdraw water from Nicks Creek.

Picerno expressed frustration about the troubling regulations facing employers at a time of high unemployment.

"It may not be enforceable by law, but I don't know what we can do legally to protect it more than we've already done," Picerno said.

Leland read a proposed amendment adding legal language intended to tighten the county's position on the water withdrawal issue. One proposed condition called for the board order to be effective one year from the date after all appeals have been exhausted - in case of an appeal.

"This is going to affect many generations after we're dead and gone," Lea said.

Step in Process

Approval of the board order is just another aspect of the process, and MHK faces a series of decisions and actions before the first shovel or bulldozer goes to work on the heavily wooded tract.

Under the county's zoning ordinance, the developer must present the preliminary plat for the first phase within three years. In the meantime, MHK must find a source of water for Pine Forest and must secure permits from multiple state and local agencies for the water system, the on-site sewage treatment system and all other aspects of the development.

MHK wants to develop two communities and a small business center on the property. One community will be a private gated residential development with its own 18-hole golf course. The other will be a resort with another golf course, a hotel and related amenities. MHK also plans a nine-hole golf course.

Contact Florence Gilkeson at florence@thepilot.com.