MINUTES OF A PUBLIC HEARING OF THE MAYOR AND COUNCIL OF THE TOWN OF CHAPEL HILL, MONDAY, SEPTEMBER 30, 1991 AT 7:30 P.M.

Mayor Howes called the meeting to order.

Council Members in attendance were Julie Andresen, Joyce Brown, Joe Herzenberg, Nancy Preston, Alan Rimer, Arthur Werner and Roosevelt Wilkerson, Jr. Also in attendance were Assistant to the Mayor Lisa Price, Town Manager Cal Horton, Assistant Town Managers Sonna Loewenthal and Florentine Miller, Assistant to the Attorney Richard Sharpless and Town Attorney Ralph Karpinos.

Mayor Howes inquired about the number of speakers wishing to address each of the items.

Item 1 Hearing on Proposed Smoking Regulations

Town Attorney Ralph Karpinos presented an overview of the proposed ordinance, including an outline of areas where prohibition of smoking was proposed. He reviewed proposed Section 11-116 concerning proposed smoking accommodations in restaurants, Section 11-120 concerning regulations in large facilities and Section 11-121 concerning the provision of smoke-free areas for non-smoking employees.

Bonnie Veaner Parks said she had been a Town resident since 1986. Ms. Parks noted that she had a severe allergy to smoke, which limited the restaurants and community events she could frequent. Noting that she was four months pregnant, Ms. Parks said that smoke was harmful to both herself and her baby. She stated that smokers had no inherent right to smoke. Ms. Parks said that business at some establishments in other communities had increased after smoking restrictions were implemented. She urged the Council to protect the health of non-smokers.

William Lindsay said his wife hasd voiced the opinion that freedoms

were being severely restricted by the Town. He suggested that if individual merchants chose to impose smoking prohibitions, it would be left to the discretion of individuals whether or not to visit a particular establishment. Mr. Lindsay stated that he had vigorously defended his rights to own a cougar, despite State laws to the contrary. Mr. Lindsay noted that he still owned the cougar. Mr. Lindsay said he doubted that the Council wanted to immerse itself in a constitutional debate concerning smoking regulations.

Howard Aldrich said he favored the originally proposed ordinance, rather than the latest draft ordinance. Mr. Aldrich stated that smoking killed an estimated one thousand smokers and two hundred non-smokers per day. He suggested that if any other product had similar fatality rates, the United States Food and Drug Administration would ban the sale of the product. Mr. Aldrich stated that the effects of environmental tobacco smoke were cumulative over a number of years. He said it was the Council's job to reduce the exposure of citizens to tobacco smoke. Mr. Aldrich said the concept of separate sections for non-smoking and smoking patrons of establishments was flawed, since air was redirected through the same venitlation system. He urged the Council to adopt the original smoking regulation proposal.

Noting that his mother had died from lung cancer due to smoking, Walt Boyle said that approximately 250,000 smoking related deaths occurred in the United States each year. Mr. Boyle strongly encouraged the Council to examine a proposal whereby individual shop and bar owners could make individual decisions concerning smoking regulations in their establishments. Mr. Boyle said he was particularly concerned about the eroding rights of citizens.

Patty Griffin, representing the American Heart Association, stated that the American Heart Association, American Lung Association and American Cancer Society all favored the adoption of local ordinances to address smoking regulations.

Don Stanford, a local attorney and lifelong Town resident, said he was concerned that the latest draft ordinance was not as strong as the original proposal. He stressed the need to create a safe, clean environment for Town residents. Mr. Stanford said that other government bodies such as the University had taken strong steps to eliminate smoking for those who choose not to smoke. He also expressed concern that the revised draft ordinance would have higher costs for small businesses. Mr. Stanford said that those who do not smoke ought to be protected from those who do. He stated that the Town had a chance to take a dramatic step in protecting non-smokers by banning smoking in all public places.

Mark Chilton, UNC student government liaison to the Council, said the student government's position was that smoking should be banned in all buildings, except those which provide separate ventilation facilities. He noted that buildings such as the Davis Library had separate systems. Mr. Chilton stated that former Surgeon General Koop had found that second hand smoke had health impacts similar to smoking itself. He noted that inidividuals had the right to decide which restaurants or other establishments to patronize on the basis of smoking regulations or other criterion. He urged the Council to adopt a strong ordinance concerning the regulation of smoking.

Dr. Adam Goldstein said he had provided medical support for the original ordinance drafted by the Town Attorney. Dr. Goldstein commended the Mayor and Council for focusing the hearing on which ordinance would be adopted instead of whether or not an ordinance would be passed. He urged the Council to vote on the matter expeditiously. Dr. Goldstein stated that the National Institute of Occupational Safety and Health recommended that exposure to envionmental tobacco smoke be reduced using all available measures to do so.

Dr. Goldstein expressed concern that the revised draft had a greatly diminished impact, compared to the original proposal. He also suggested that the ordinance prohibit smoking in pharmacies. Noting that seventy-five percent of the population were non-smokers, Dr. Goldstein inquired whether smoking would be permitted in one or several locations throughout business establishments.

Dr. Goldstein also suggested that the sale of cigarettes to minors be enfoced by a civil penalty, with violators losing their license. He stated that the proposed ordinance offered the Town to take steps in breaking the addiction to tobacco. Dr. Goldstein said he hoped that funds would not have to be expended on a voter referendum concerning smoking.

Dave McGaffigan said the restaurant he managed had posted a sign in its restaurant for the past ten months, offering to accommodate the needs of smoking and non-smoking patrons as best as possible. Mr. McGaffigan said that greater teamwork and compassion was needed in implementing voluntary non-smoking regulations. He stated that it would be cost-prohibitive for most establishments to have separate ventilation systems. Mr. McGaffigan said his preference was for less regulations and greater compassion.

Mayor Howes requested that the Town Attorney prepare a response to a letter from University of North Carolina Paul Hardin regarding the applicability of the proposed ordinance to the University campus. Mayor Howes said that the Chancellor's letter noted that the University was taking steps to reduce smoke, but could not support the proposed ordinance as it applied to University buildings. Mayor Howes said that the Council had a difficult choice to make about the extent of the regulations. He emphasized the need to balance the needs of all parties.

Council Member Andresen inquired how many large facilities would be required to provide specific smoking facility plans to the Town. Town Attorney Karpinos said that plans would be needed for University Mall, Carmichael Audiotorium, the Smith Center and possibly one or two other facilities.

Council Member Andresen noted that passage of a smoking regulation ordinance would inconvenience the smoking public. She added that people who smoked in public places affected others. Council Member Andresen stated that the ordinance had been drafted in the interest of public health. She expressed concern that the ordinance might have a minimal impact, resulting primarily in the creation of another layer of regulation. Council Member Andresen expressed hope that the Council would do something simple, rather than complicated.

Council Member Preston inquired about the constituitionality of a local ordinance to regulate smoking. Town Attorney Karpinos responded that the North Carolina General Assembly granted certain police powers concerning public safety and welfare to local jurisdictions. Mr. Karpinos said that local ordinances such as smoking regulations were clearly authorized by State statutes and the United States Constitution. Mayor Howes noted that efforts had been made in the General Assembly to limit local government authority over smoking regulations.

COUNCIL MEMBER HERZENBERG MOVED, SECONDED BY COUNCIL MEMBER PRESTON, TO REFER THE MATTER TO THE TOWN MANAGER AND ATTORNEY. THE MOTION WAS ADOPTED UNANIMOUSLY (8-0).

Mayor Howes inquired when the item would return for Council consideration. Mr. Karpinos said October 14th.

Item 2 Timberlyne BP Oil Special Use Permit

Town Manager Horton requested that the materials presented this evening be entered into the record of the hearing. Mayor Howes concurred with the request.

The Clerk swore in previously unsworn parties wishing to testify in the matter.

Planning Director Roger Waldon briefly reviewed key issues. He noted that the application met or exceeded all standards in the Town's Development Ordinance. Mr. Waldon added that there had been significant concern about environmental impacts including underground petroleum storage tanks. He said that the proposed conditions of approval contained provisions to make petroleum storage on the site as safe as possible. Mr. Waldon added that the applicant was proposing that stormwater runoff be treated and filtered off site, similar to a private home's septic tank.

Mr. Waldon said that the Development Ordinance did not address limiting hours of operation for facilities such as service stations. He said that the staff was recommending that this matter be addressed on a Town-wide basis, rather than an individual land-use matter. Mr. Waldon said that a traffic impact study of the site and surrounding area had concluded that the level of service would not be impacted negatively by the proposed development. He added that a study had also been conducted to measure the volume of cut-through traffic along Kingston Drive. Mr. Waldon said that an estimated twenty trips per hour would be added by the proposed service station, of which four would be cut-through trips. Mr. Waldon stated approximately two cars per minute used Kingston Drive at peak times.

Jack Smyre, representing the applicant, said that two public meetings had been held with area residents since the last public hearing. Mr. Smyre noted that the Design Review Board process had been very helpful in developing the project. He stated that recycled water would be used in the car wash and double-walled underground fuel storage tanks would be in place at the site. Mr. Smyre added that the applicant had agreed to install intersitial alarms to detect leakage in the storage tanks. He also noted that estimated trip generation by the service station would not overwhelm the capacity of Kingston Drive. Mr. Smyre also stated that the applicant had agreed not to sell alcohol at the station between 11 p.m. and 6 a.m. He said that a pass-through window would be used for sales transactions during these hours. He said that the matter of whether or not the facility was open all night should be left up to the applicant.

Charlie Zimmerly, President of the Timberlyne Neighborhood Association, said area residents had not been involved in early meetings with the Planning and Design Review Boards. He emphasized the importance of individual development projects being consistent with the Town's Comprehensive Plan. Mr. Zimmerly noted that he had inquired about several matters in a recent letter to the Council including why a service station was being proposed when several others were located nearby. Mr. Zimmerly also inquired why the Timberlyne area was considered as an appropriate place for a twenty-four hour operation. He also asked why hours for alcohol sales were extended beyond those at the shopping center. Mr. Zimmerly stated that a door to door poll of area residents found that 193 were opposed to the BP proposal, 13 were in favor and 21 were neutral or had no opinion. Mr. Zimmerly expressed doubt that the Town would gain economically from the proposed use by BP Oil. He stated that any development on the site should be compatible with the neighborhood and existing shopping center.

Mr. Zimmerly said that the success of the station depended upon automobile traffic, posing a new hazard for area bicyclists and pedestrians. He also expressed concern that a strip type development would likely be built next to a service station. Mr. Zimmerly said an objective of the Comprehensive Plan was to minimize conflict between neighborhood commercial uses and adjoining neighborhoods. He invited members of the Council to visit the Timberlyne neighborhood and proposed site to get a sense of pedestrian and vehicular traffic and other activity in the neighborhood. Mr. Zimmerly said the four necessary findings to locate a service station could not be met. He said the Timberlyne Neighborhood Association recommended that the Council deny the applicant's request.

Charles Waterson, a neighborhood residenet, said he had discussed the applicant's TIA and a staff traffic study with Town transportation planners. Mr. Waterson expressed concern that the proposed facility would generate 1,816 additional trips per day according to a traffic study by Town staff. He noted that an estimated 490 trips per day would go through the adjoining neighborhood. Mr. Waterson said that Kingston Drive would be under standard for its proposed usage level. He added that only two hundred feet of stacking space was available from the site, rather than three hundred feet, as required by the Development Ordinance. Mr. Waterson said that there were already six service stations within the immediate vicinity of the area, with a sixth in the planning stages. He noted that the facility would be likely to generate only a few minimum wage service jobs.

Greg Sandreuter, representing Timberlyne Shopping Center, said that the subject parcel had been zoned Community Commercial in 1982. He noted that Westchase Development had purchased the Timberlyne Shopping Center in 1988. Mr. Sandreuter said that Westchase Developmente was committed to making Timberlyne a safe, clean and pleasant place to visit and frequent. He stated that the proposed use would generate little additional traffic and would not generate a lot of refuse. Mr. Sandreuter said that BP had attempted to mitigate concerns about traffic, landscaping and environmental matters. He added that the site was zoned for the intended use and would be well-managed facility. Mr.Sandreuter also said that the facility would provide a needed service for the area.

Mary Ann Gross, a new Town resident, said Jim Selkirk had provided her with several interesting statistics concerning the incidence of crimes related to convenience stores. She noted that the Uniform Crime Report stated that 13% of all robberies around the State occur at convenience stores. Ms. Gross added that armed robberies state-wide had risen by 82.6% since 1986, with an average of three conveience stores being robbed per day around the State.

Ms. Gross said the Town had done a good job of keeping the community an attractive place to live. She said it was not within the character of the Timberlyne community to have a service station in the proposed location.

Julianne Caldwell, an eight and a half year old third grader at Seawell Elementary School, said the Council would be sorry if it let the gas station build at the site. She urged the Council to

maintain the site as a beautiful place for flowers and a nice environment.

Jim Baker said he had owned the Timberlyne Shopping Center since 1988. Mr. Baker said he was sensitive to needs of the community and the need to attract appropriate uses to the outparcels which were in keeping with the character of the community. Mr. Baker said that BP Oil was the premiere operator of service stations throughout the nation. He added that the company was responsive to environmental and other community needs. Mr. Baker noted that there had been only one break-in at the shopping center since its opening. He also clarified that approximately 300 cars per day would visit the site, rather than 1,800 as previously stated. Mr. Baker said a service station would make the best possible use of the site. He added that he wouldd not sell other parcels for use as a strip center.

Francisco Delgado said that earlier speakers had outlined his concerns about the proposed facility.

Bob Ward, 132 Kingston Drive, said he favored economic development in Orange County, but did't see how the proposal would improve economic development or the general health, safety or welfare of the community. Mr. Ward said he the future of the neighborhood was in jeopardy if the proposal were approved. Mr. Ward stated that he resented the use of the term collector road to describe Kingston Drive, since it served as a home of many individuals and families. He asked the Council to think of their own homes and how they would react to having a 24-hour facility proposed in their neighborhood.

Dave Handfinger, 22 Balsam Court, showed sales posters for the Timberlyne neighborhood, stating that the neighborhood would have mature hardwoods and be low-density with open space for recreation. Mr. Handfinger said that the Timberlyne area was proposed as a quiet, safe and tranquil neighborhood. He urged the Council not to deviate from the concept of community.

Charles Waterson requested permission to clarify two points. Mayor Howes concurred with his request. Mr. Waterson said that the traffic impact analysis had estimated that the station would generate an additional 1,816 vehicle trips per day. He also noted that a survey of neighborhood residents had found that preferred uses for the site were a fast-food restaurant, a bakery or a bookstore. He said that service stations had ranked ninth in this survey as a preferred use.

James Manning said another gas station was not needed in the area. Dr. Manning said a fair number of emergency patients visited the emergency room due to incidents at 24-hour convenience stores. He stressed the need to limit alcohol sales during late night hours. Dr. Manning expressed concern that all-night convenience stores attracted a certain amount of crime. He said that the Timberlyne area did not need a 24-hour convenience store.

Citing earlier comments by the applicant concerning late-night security at the site, Bob Crane, 135 Kingston Drive, noted that it was very difficult to look out of a well-lit room late at night.

Council Member Werner inquired about the status of a sidewalk petition submitted by the neighborhood. Mr. Horton said he would follow-up on the matter. Council Member Werner inquired about the stacking distance at a service station located near Hamilton Road in the Glen Lennox area. Mr. Waldon said the distance was less than the permitted 300', since the station was pre-existing on the site. Council Member Werner requested that the staff provide other examples of stacking distances for service stations in its follow-up report to the Council. Council Member Werner said he did not agree with the staff's suggestion on how to handle regulating 24-hour service stations. He said that some operations should be open all night, while others should not. Council Member Werner said the matters should be handled on a case-by-case basis. Town Manager Horton said he concurred, noting that the staff was addressing the handling of service stations which were similarly situated. He added that the Council had a broader mandate than the staff in establishing conditions of approval based on public safety.

Council Member Wilkerson requested a definition of a collector street. Mr. Waldon said that streets were categorized as arterials, collectors or local streets. He said the designation of existing streets was determined by how streets function, number of lanes, width of streets, presence of curb and guttering and other factors. Mr. Waldon said that Kingston Drive served as a collector street, narrowing to a local Class A road. Noting that Kingston Drive had not been built to Town standards when the area was annexed in 1983, Council Member Wilkerson asked whether additional traffic in the area would create potential traffic problems. Mr. Waldon said that the Council had received a number of statements of concern about this situation.

Council Member Wilkerson asked Mr. Waldon to respond to neighborhood concerns about traffic stacking. Mr. Waldon said that facilities such as the service station could not be located closer than 300' from an intersection. He noted that the proposed site met this condition. Council Member Wilkerson inquired whether Kingston Drive was properly marked for turning movements onto Weaver Dairy Road. Mr. Waldon said it was not, but the situation could be addressed in the future by painting appropriate directional signs on the pavement.

Council Member Wilkerson inquired why the study was not done at night, rather than in the morning. Mr. Waldon said the area was studied at the time of heaviest use, with the purpose of the analysis being to determine the worst case concerning the volume of vehicles. Council Member Wilkerson inquired why there had been a change in the staff's opinion concerning limiting hours of operation, compared to conditions for Chapel Hill North. Mr. Waldon said there was no difference in the proposed condition of approval. Council Member Wilkerson said that safety concerns had not been addressed to his personal satisfaction. He stated that public safety officials had recently indicated that a convenience store on NC 54 East was a prime location for a robbery. Council Member Wilkerson noted that the store was robbed two weeks after this observation was made. Council Member Wilkerson said he was not convinced that the proposed facility would offer an adequately safe environment. Addressing the applicant, Council Member Wilkerson inquired what kind of plan would be in place to insure security of individuals working in the station at night and those working in the store. Council Member Wilkerson added that he had information concerning a special security system in use in Charlotte which he could make available to the applicant.

Council Member Herzenberg said he was concerned about traffic on Kingston Drive. He thanked area residents for photographs detailing roads and roadway use of Kingston Drive. Council Member Herzenberg suggested that the stipulation concerning alcohol sales to recognize the fact that alcohol could not be sold after 2:00 a.m.

Council Member Preston said that there had been no explanation of why the particular outparcel had been selected for the facility rather than other outparcels on the site. She expressed concern that the proposal offered a bad entrance into the neighborhood. Council Member Preston said that the facility would be better located at another spot in the shopping center. Council Member Preston said she shared Council Member Werner's concern about the proposed entrance onto Weaver Dairy Road.

Council Member Andresen said she concurred with Council Member Preston about the appropriateness of the parcel and the character of the entranceway to the neighborhood. She also expressed concern about the increased potential for accidents between cars, walkers and bicycles, if the proposal were approved. She noted that the entrance to the Glen Lennox Shopping Center on Hamilton Road was poor and that stacking distances were a major concern at both sites. She expressed concern that the character of the neighborhood would change if the application were approved.

Council Member Rimer said he had spoken to BP Service Station operator Jimmy Talbert who had indicated that he did not desire to run a BP station 24 hours a day. Council Member Rimer said he was concerned about the proposed hours of operation. He also noted that questions about the proposed siting of the station on the tract needed to be addressed. Council Member Brown said she shared the concerns of her fellow Council Members about traffic and safety. She inquired whether it was possible for subsequent Councils to change conditions of approval for the project. Mr. Karpinos said such changes would necessitate a new public process and modification of the special use permit.

Council Member Brown inquired about criterion for placing logos and signage on Interstate 40 for service stations, restaurants and lodging. Mr. Horton said that the State of North Carolina had the right to post the signs at their discretion. Council Member Brown said she was concerned about the use of underground fuel storage tanks, since the tanks would be located within five hundred feet of the water supply for mobile homes located across Weaver Dairy Road.

Jim Baker said that the parcel had been chosen because of its size. He noted that the adjoining parcel was smaller. Mr. Baker also said that outparcels by at the western end of the shopping center were too large for a service station. Mr. Baker said that the parcel next to the proposed parcel was too steep for a service station. He added that there had been a number of other technical factors in determining the site for the service station.

Council Member Preston inquired whether the applicant had considered pursuing a request to move the property lines. Mr. Baker said this would entail redrafting the boundaries of the land. Mr. Baker said he had chosen not to do so. He said that the proposed use fulfilled the intent of original zoning for the site. Council Member Rimer inquired whether Mr. Baker had considered changing the boundaries concurrently with his application for a special use permit. Mr. Karpinos said he had consulted with Mr. Waldon, who indicated that the process would be affected by how the lot lines for the original parcels had been set. He added that Mr. Waldon would examine the possibility of concurrent applications in greater detail.

Mayor Howes inquired when the item could be brought back for Council consideration. Mr. Horton said October 14th.

COUNCIL MEMBER WERNER MOVED, SECONDED BY COUNCIL MEMBER HERZENBERG, TO REFER THE MATTER TO THE MANAGER AND ATTORNEY AND RECESS THE HEARING TO OCTOBER 14TH. THE MOTION WAS ADOPTED UNANIMOUSLY

(8-0).

Item 3 Comprehensive Housing Affordability Strategy

Town Manager Horton said one of the main purposes of developing a housing strategy was to continue to receive federal community development funds. He noted that the Town was the only community in Orange County required to prepare such a strategic plan, under the terms of the National Affordable Housing Act of 1990. Mr. Horton stated that Town housing staff had worked with other local governments and entities to develop a county-wide affordable housing strategy.

Judy Russell, Housing and Community Development Planner, presented an overview of the proposed plan. She noted that the plan was a single planning document to address housing needs in Orange County. Ms. Russell said purposes of the act included retaining affordable housing, expanding and improving federal rental assistance, allowing those with special needs to live with dignity, and making affordable, decent housing available to all. She noted that the Town was required to make the planning document available for inspection for at least sixty days. Ms. Russell added that at least hearing had to be held on the proposal.

Adele Thomas said the Town should not subsidize housing for those making up to $35,000 per year. She stated that emphasis should be placed on subsidizing those with low incomes and providing rental housing for very-low income families. Ms. Thomas noted that the income limitation for Habitat for Humanity homes was $21,000 per year. She added that approximately half of Habitat for Humanity home payments were to cover the costs of taxes and insurance, with the balance being applied to land and building costs.

Council Member Andresen said she interested in the goal of constructing fifty units of affordable rental housing per year. Council Member Andresen stated that she was concerned about what the Council was committing itself to by adopting the strategy.

Ms. Russell said the strategy was strictly a planning document, establishing needs based on comprehensive data. She said the Council was not committing itself to anything other than setting goals. Ms. Russell said that the strategy was a prerequisite for participating in block grant other programs in the future.

Council Member Brown inquired about the possibility of purchasing existing low-income housing. She requested that the staff provide a recommendation on pursuing this matter. Mayor Howes inquired whether Council Member Brown was suggesting that existing housing stock be converted into affordable housing stock. Council Member Brown said yes. Mayor Howes said that this would result in taking property off the tax rolls. Council Member Rimer said he was concerned that the stock of housing would not be increased by this method. He stated that methods which would increase existing stock would be worth pursuing.

Council Member Andresen inquired whether public ownership of rental units was a goal of the affordable housing strategy. Ms. Russell said no. She said the program's principal goal was to have rents which were affordable. Noting the poor track record of previous programs of this type, Council Member Andresen inquired how this objective would be achieved. Ms. Russell said that the staff from the various entities would work hard to develop an effective strategy. Council Member Wilkerson asked whether the strategy would include projects in process. Mr. Horton said that the Town staff would concentrate on inventing new ways of developing affordable rental housing. He noted that the Culbreth Park housing program was a very complex program for making affordable housing available.

Noting that Donna Dyer, Executive Director of Orange County Community Housing, had to leave earlier in the evening, Council Member Wilkerson requested that her comments be entered into the record of the hearing. Council Member Wilkerson said he hoped that the Council would support and participate in the Comprehensive Housing Affordability Strategy. He noted that officials with the United States Department of Housing and Urban Development had indicated that the Town's standing would be enhanced by a widely-focused, county-wide affordable housing strategy.

Council Member Werner inquired what assumptions had been made regarding federal and state funding. Ms. Russell said that the new housing strategy was primarily dependent upon allocations by the United States Congress. She added that competition for available State affordable housing funds would become more intense in the future.

COUNCIL MEMBER WILKERSON MOVED, SECONDED BY COUNCIL MEMBER WERNER, TO REFER THE MATTER TO THE TOWN MANAGER. THE MOTION WAS ADOPTED UNANIMOUSLY (8-0).

Mayor Howes noted that the Council would hold a work session on the Town's public safety system beginning at 5:30 p.m. in the Town Council Chamber.

The hearing concluded at 9:55 p.m.