Overview of Regulatory Tools Endorsed by Town Council and University for Guiding Development at Carolina North

David Owens

November 19, 2008

In September and October the Town Council and University Trustees met to discuss the proposed review process and agreed to the process described below. This process was developed by a Town-University Joint Staff Working Group. The process builds upon the recommendations of the Horace Williams Citizens Advisory Committee reports, the work of the Leadership Advisory Committee, the technical work and analysis prepared by the University on the Carolina North project, and the prior experience with Town review of University development proposals.

Principles Guiding Process Design

The key principles used in developing this proposed process included:

Secure broad and multiple opportunities for meaningful public participation and discussion at all phases of the process and allow for adaptation during the review process.
Provide for open, transparent negotiations and decision-making.
Assure the opportunity for the Town and public to have the University’s broad plans for long-term development of the entire project to provide context for the plans submitted for approval and a context for long-term development and broad community impacts.
Have a well defined, discrete portion of the overall project submitted for approval.
Provide adequate time for staff, public, and Council review of plans, with predictability regarding process timing.
Provide predictability and certainty for both the Town and University for that discrete portion of the project submitted for review, with subsequent effective administrative review of individual development projects that are consistent with the approved plan. Avoid constant necessity of modifications of prior approvals.
Provide an ability to craft mitigation measures based on the approved plan, allowing greater flexibility and efficiency than dealing with individual projects on an ad hoc basis.
Provide adequate opportunities for monitoring performance and enforcement on an on-going basis.
Provide adequate opportunities for adaptation and periodic review and approval of subsequent discrete phases of the project, providing the opportunity to incorporate experience and changing conditions as needed.
Assure that the full range of previously identified community, Town, and University concerns are addressed, taking full advantage of the substantial discussions already completed on this project.

Basic Process to be Followed

The Town Council and University agreed to proceed in three steps:

First, the University submits a request for ordinance amendments to create this new process, along with its plans and studies regarding Carolina North. This was done on October 31. The community and Town will review this request over the fall of 2008 and develop specific ordinance text amendments and a draft development agreement.
Second, the specific text amendment and draft development agreement are to be submitted to the Council in January 2009 to allow a second round of public review and comment on these specific proposals. The University and Town will discuss and negotiate specific conditions and provisions in the proposed development agreement over the winter.
Third, in late spring, all of the modifications and adjustments will be incorporated into a final proposed package of LUMO text amendments, a rezoning, and a development agreement that will be formally submitted for Town action. The Council will then conduct its official hearings and take action on the proposal in June 2009.

Development Agreement Basics

The basic concept of a development agreement is straightforward. A landowner proposes a large scale development and presents a fairly detailed plan for that development. The project may provide for public or private provision of supporting infrastructure. If the local government and land owner reach agreement about the development and infrastructure, they enter into a development agreement that binds each to the agreement for an agreed upon time.

North Carolina statutes set several bounds on the use of development agreements. The property subject to a development agreement must be at least 25 acres in size. The agreements may last no more than 20 years. The agreements must be adopted by ordinance by the town council. A public hearing requirement on the proposed adoption must be held by the council following the same public notice requirements applicable to zoning text amendments. Once executed by both parties, the agreement must be recorded and binds subsequent owners of affected land as well the current owner.

The statute provides a list of items that must be included in each development agreement. These include:

A legal description of the property subject to the agreement and the names of its legal and equitable property owners.
The duration of the agreement.
The development uses permitted on the property, including population densities and building types, intensities, placement on the site, and design.
A description of public facilities that will service the development, including who provides the facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development.
A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions to protect environmentally sensitive property.
A description of all local development permits approved or needed to be approved for the development of the property.
A description of any conditions, terms, restrictions, or other requirements determined to be necessary by the local government for the public health, safety, or welfare of its citizens.
A description, where appropriate, of any provisions for the preservation and restoration of historic structures.
A development schedule, including commencement dates and interim completion dates at no greater than five year intervals.

The statute places several limits on development agreements. A local government may not impose a tax or a fee or exercise any authority that is not otherwise allowed by law. The development agreement must be consistent with the ordinances in effect when the agreement is approved. The agreement may specify that the developer furnish certain public facilities, but it must also provide that the delivery date of these facilities is tied to successful performance by the developer in completing the private portion of the development. This feature is designed to protect developers from having to complete public facilities in circumstances where progress in build-out may not generate the need for the facilities. While the town ordinances in effect when the agreement is executed do remain in effect for the life of the agreement, the development is not immune from changes in state and federal law or changes necessary to deal with threats to public health and safety.

An annual review of progress is mandated and if there is a material breach of the agreement the town can cancel the agreement. The parties can at any time amend the agreement by mutual consent.

Steps Necessary for Use

The development authorized in a development agreement must be consistent with the zoning regulations applicable to the land involved at the time of approval of the development agreement. Thus the LUMO would be amended to create a new zoning district to be applicable to the property covered by the development agreement. The new district would authorize and set the procedural and substantive requirements for a development agreement to carry out the development proposed in an approved plan. This new zoning district would be created specifically for and applicable only to the Carolina North property.

The LUMO text amendment to create this district, the rezoning of the land to the new district, the plan for the development covered by the agreement, and the development agreement itself will be processed by the Town concurrently. The University has also submitted for informational purposes a context plan showing it current intentions regarding a fifty-year plan for the entire Horace Williams property. The text amendment and rezoning will only be approved if the Town and University also reach agreement on a specific plan for a defined portion of the Carolina North project and on a development agreement covering that portion of the project. All of the public notice and hearing requirements, as well as mandatory referral to the planning board, that are required for LUMO text amendments will be followed to act on the proposed development agreement.

Differences and Similarities to Previously Used Tools

The use of a development agreement that is based on a rezoning and approval of a plan for a portion of the Carolina North project has some similarities to the current provisions of the LUMO for approval of a master land use plan with subsequent administrative approval of site plans for individual buildings consistent with the master plan. The Town has the ability to see and consider the conceptual plans for an overall project and to review and approve a specific portion or phase of the project. This allows consideration of a broad range of potential impacts and the requirement of comprehensive mitigation measures. It also allows consideration of the interrelations between individual projects and how they will fit into the broader community.

There are, however, several very important differences. With the development agreement, the entire process of town review and approval is legislative. There are no quasi-judicial decisions involved as is now the case with master land use plans and special use permits. This results in several important differences:

Degree of discretion. The Council retains more discretion as to whether the project is approved since the decision is based on whether the Council concludes the agreement is generally in the public interest as opposed to whether the evidence supports a conclusion that the project meets pre-determined standards. Of course, University concurrence with the agreement is also necessary.
Process. The Council has more flexibility in the process. With quasi-judicial decisions the public hearing must be an evidentiary one – witnesses are testifying under oath as to whether the standards are met, no ex parte communication is allowed, formal findings must be adopted, and so forth. With the development agreement approach, the Council is free to create multiple venues for public comment. Citizens can still offer factual evidence about the project, but they are also free to offer broad comments and opinions about the terms of the agreement as well as its approval or rejection.
Scope. Mutually agreed upon conditions need not be limited to those necessary to bring the project into compliance with pre-set standards, as would be the case with a quasi-judicial decision. The length of the agreement, the physical area covered, provisions regarding the specific amount and type of development covered, and mitigation measures are all subject to negotiation. To the extent the Council and the University agree, the agreement can include specific sections that address each of the issues raised in the Horace Williams Citizen Advisory Committee reports and the Leadership Advisory Committee report.

Updated 11-19-08

Detailed Target Timeline for Town Review of CN Development Proposal

Date	Action
September 25 2008	Council-Trustee work session (with public comment period): Presentation and discussion of development review process proposed by staff, Briefing and discussion of legal aspects of development agreements

October 15	Regular Council meeting: Council discussion of review process
October 22	Council-Trustee work session (with public comment periods): Discussion of detailed timeline and process for review; issues to be addressed
October 31	University initiates process with written request for consideration new zone, map amendment, and development agreement; submits long-range plan, mid-term and early stage development plans; University submits background ecological studies and draft design guidelines

November 3-17	Data collection on traffic counts for future traffic impact analysis; Town develops RFQ for consultants to conduct CN traffic impact analysis consistent with town guidelines and process
November 10	Regular Council meeting: Council receives University’s Carolina North request and materials
November 18	Council-Trustee work session (with public comment periods): Presentation and discussion of University-submitted plans and materials; discussion of process for addressing issues and categorization of issues
November 19	Informational meeting for public and advisory boards (with staff report to Council/Trustees) – (1) Development review process, timing, opportunities for involvement, issues to be addressed; (2) Presentation and discussion of University’s October 31 submittals. {Additional staff updates provided to advisory boards at regularly scheduled meetings December through March.}

December 3	Council-Trustee work session (with public comment periods): Discussion of scale of CN project to be addressed in development agreement, scale of rezoning, range and mix of uses in zone and development agreement, and (time permitting) housing mix and timing
December 8	Regular Council meeting: Staff update to Council on adequacy of town staff resources; Long range transportation study submitted by consultant, presented to Council if available
December tba	Fiscal impact analysis report submitted by consultant

January 6 2009	Staff proposal for text amendment and initial detailed outline of development agreement (with phase plan and design guidelines), University application for map amendment submitted to Manager
January 12	Regular Council meeting: Council receives for review proposed: LUMO text amendment zoning atlas amendment; CN phase plan and design guidelines; detailed outline of development agreement
January 14	Council-Trustee work session (with public comment periods): Presentations and discussion of fiscal impact and transportation studies; Discussion of terms of development agreement
January 29	Informational meeting for public and advisory boards (with staff report to Council/Trustees) – Presentation and discussion of fiscal impact and transportation studies; presentation and discussion of proposed rezoning, text amendment, and development agreement

February 11	Council-Trustee work session (with public comment periods): Discussion of terms of development agreement
February 16	Town staff comments to University on submitted plans and proposed development agreement

March 2	Final proposed text/map amendments, plan, and development agreement submitted to manager
March 4	Informational meeting for public and advisory boards (with staff report to Council/Trustees) {if needed, anticipated to focus on specified issues}
March 10	Regular Council meeting: Council receives proposed ordinance amendments and development agreement; directs initiation of formal review
March 11	Council-Trustee work session (with public comment periods): Discussion of terms of development agreement

April 1	Informational meeting for public and advisory boards (with staff report to Council/Trustees): Presentation and discussion of final proposed plans and development agreement
April 1-23	Advisory board meetings at regular meeting schedules
April 21	Planning board regular meeting: Planning Board discussion of proposed text and map amendments and proposed development agreement
April 22	Council-Trustee work session (with public comment periods): Discussion of terms of development agreement

May 5	Planning board regular meeting: Planning Board recommendation on text/map amendments and development agreement
May 11	Council regular public hearing: Public hearing on text/map amendments and development agreement
May 21	Council-Trustee work session (with public comment periods): Discussion of terms of development agreement

June 8	Regular Council meeting: Council deliberation
June tba	Additional public information meetings or hearings as needed
June 22	Regular Council meeting: Council action text/map amendments and development agreement

July 6	If approved, development agreement executed and recorded