TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Public Hearing: Proposed Neighborhood Conservation District for the Morgan Creek/Kings Mill Road Neighborhood
DATE: May 15, 2006
PURPOSE
Tonight, the Council considers a proposed rezoning to create a Neighborhood Conservation District for the Morgan Creek/Kings Mill Road neighborhood. An attached map shows the proposed boundary for the Neighborhood Conservation District (please see Map 1).
This package of material has been prepared for the Town Council’s consideration, and is organized as follows:
Cover Memorandum: Summarizes the proposed, reviews procedures for review, and offers a preliminary recommendation for Council action.
Attachments: Includes an ordinance designating the district boundaries and specifies the purposes and standards for the district (please see Attachment 1).
The Land Use Management Ordinance includes a provision for creating Neighborhood Conservation Districts. The purpose of creating a Neighborhood Conservation District is to preserve and protect unique and distinctive older in-town residential neighborhoods or commercial districts which contribute significantly to the overall character and identity of the Town.
A Neighborhood Conservation District is created as an overlay zoning district by enactment of an ordinance to designate the district. The rezoning ordinance would identify the designated district boundaries. The Land Use Management Ordinance also states that a conservation plan shall be approved as part of a Zoning Atlas Amendment creating a Neighborhood Conservation District.
The Morgan Creek/Kings Mill Road proposal for designation as a Neighborhood Conservation District was initiated by Council on May 9, 2005 after the Council received a petition requesting the designation from 58 percent of the property owners in the neighborhood.
On June 15, 2005, the Council authorized engaging Clarion Associates to prepare and complete Neighborhood Conservation Districts in the Coker Hills, Greenwood, Morgan Creek/Kings Mill Road and Pine Knolls neighborhoods by April 2006, at a cost not to exceed $50,000. Clarion presented its final recommendations to the Planning Board at its March 7, 2006 meeting. Please see Attachment 2 for the recommendations prepared by Clarion Associates for the Morgan Creek/Kings Mill Road neighborhood. Please see the summary chart below for a table summarizing the proposed Neighborhood Conservation District Plan recommendations.
ORDINANCE PROVISIONS
To be designated a Neighborhood Conservation District, the Land Use Management Ordinance states that an area must meet the following criteria:
The area must possess one or more of the following distinctive features that create a cohesive identifiable setting, character or association;
According to the Land Use Management Ordinance, a proposal for designation as a Neighborhood Conservation District may be initiated in one of three ways:
In the case of the Morgan Creek/ Kings Mill Road neighborhood, the Council initiated the process by adopting a resolution on June 15, 2005.
SUMMARY OF RECOMMENDATIONS
The following provides a summary of the recommendations as proposed by Clarion Associates and preliminary recommendations from the Manager.
Minimum Lot Size: The Morgan Creek/Kings Mill Road neighborhood is currently zoned Residential-1 (R-1), which requires a minimum lot size of 17,000 square feet, or .39 acres. The Clarion Associates recommendation is to change the minimum lot size to 26,000 square feet or .6 acres.
Preliminary Recommendation: We also recommend increasing the minimum lot size to .6 acres. Existing lots below the .6 acre minimum lot size would become nonconforming lots. We believe there are four vacant residential lots that would be affected by this increased minimum lot size. In most circumstances, the status of a lot as nonconforming poses no negative impacts for a single-family residential property owner. The impact of nonconforming lot status occurs when multiple, adjacent lots are held in common ownership and one or more is nonconforming. We are aware of two situations in this neighborhood with adjacent lots that would become nonconforming for this neighborhood. Chapel Hill’s Land Use Management Ordinance contains the following language:
“Where a nonconforming lot abuts another lot of record (whether conforming or nonconforming) held in the same ownership at or subsequent to enactment of this Chapter, such lots shall be combined or recombined as necessary to form a conforming lot or lots and shall not thereafter be subdivided except in compliance with all of the requirements of this Chapter.”
The Ordinance provisions allow construction of a new house on a lot smaller than .6 acre unless a property owner owns the lot next door. The Ordinance provisions would not allow construction of a new house on a lot smaller than .6 acre if the same owner owns the property next door, unless the two lots can be recombined to create two lots with at least .6 acre each.
Minimum Street Setback: The current R-1 zoning requires a minimum street setback of 28 feet. The Clarion Associates recommendation is to change the minimum street setback to 50 feet, except for lots bordering Fordham Boulevard. For those frontages that border Fordham Boulevard, street setbacks would remain at 28 feet.
Preliminary Recommendation: We also recommend increasing the minimum street setback to 50 feet. Existing lots that do not meet this regulation would become lots with nonconforming features. Please refer to Attachment 4 for a detailed discussion of nonconformity status. We do not believe that many nonconformities will be created. This determination is difficult to make without a survey of each property. The regulations provide a special status if a home no longer complies with the setback regulations that allow the structure to be rebuilt if damaged or destroyed.
Minimum Interior Setback: The current R-1 zoning requires a minimum interior setback of 14 feet. The Clarion Associates recommendation is to change the interior setback to 25 feet.
Preliminary Recommendation: We also recommend the proposal to increase the minimum interior setback to 25 feet. The Chapel Hill Land Use Management Ordinance distinguishes between an interior setback and a solar setback, which in R-1 zoning is 17 feet. We believe that the recommendation refers to both setbacks. We support the increase of both to 25 feet. We do not believe that many nonconformities will be created. The regulations provide a special status if a home no longer complies with the setback regulations that allow it to be rebuilt if damaged or destroyed.
Maximum Building Height: The current R-1 zoning permits a maximum primary building height of 29 feet and a maximum secondary building height of 40 feet. The Clarion Associates recommendation is to change the building height to a limit of two (2) stories and an unfinished attic, above the level of the street. The recommendation maintains the secondary building height at 40 feet.
Preliminary Recommendation: We do not recommend the proposal to change the maximum building height language to “stories” instead of the quantifiable measurement of feet. From a regulatory standpoint, we believe that defining the word “stories” and evaluating an application based on stories instead of feet introduces a subjective element to the zoning permit process. We recommend maintaining the current R-1 zoning standards for maximum building height.
5. & 6. Maximum Floor Area Ratio and Maximum Building Square Footage: The current R-1 zoning does not apply a floor area ratio to single-family homes nor does it currently provide a maximum building square footage. This type of regulation was included in the Northside Neighborhood Conservation District. The Clarion Associates recommendation is to impose a floor area ratio of 0.17 and to cap the maximum square footage of a house at 6,500 square feet. The recommendation allows for larger single family dwellings if they meet the proposed floor area ratio of .17 and if required minimum street and interior setbacks are doubled.
Preliminary Recommendation: We recommend the creation of a floor area ratio of .17 and capping the maximum building square footage of a house at 6,500 square feet, as proposed.
Maximum Percentage of Front Yard Used for Parking: Section 5.9.9 of the Land Use Management Ordinance states that parking and drive areas shall be limited to 40 percent of the front yard area of any zoning lot. This restriction applies to single-family and two-family residences. The Clarion Associates recommendation is to lower the percentage of front yard parking permitted to 25 percent.
Preliminary Recommendation: We recommend the proposal to decrease the percentage of allowable front yard parking area to 25 percent. Given the larger lot sizes in the neighborhood, we believe a provision to allow up to 25 percent of a front yard to be provided as parking is appropriate.
Tree Protection: The Land Use Management Ordinance does not currently address the issue of Tree Protection for a single or two-family dwelling. Clarion Associates’ recommendation requires consultation with Town staff before removing deciduous trees measured at 24” DBH (diameter at breast height) or greater, except as part of construction and/or maintenance of permitted improvements, or to remove dead, diseased or hazardous trees.
Preliminary Recommendation: We are concerned about the recommendation to require a consultation with Town staff before clearing trees measured at 24” DBH. We believe that the addition of tree protection regulations for single- and two-family dwellings could have significant staffing implications. In addition, we are aware that the Council is considering a text amendment to the Land Use Management Ordinance to address this issue Town-wide. We recommend that tree removal issues be addressed during the Council’s deliberations on this matter, expected later this year.
Notification of Tree Removal: Clarion Associates’ recommendation would require property owners that wish to remove trees to notify adjacent property owners: 1) prior to a landowner removing trees measured at 24” DBH with their lot’s interior setbacks; or 2) if more than 20 percent of the trees on a lot are to be removed, except when tree removal is part of construction and/or maintenance of permitted improvements, or to remove dead, diseased, or hazardous trees. A 10-day wait period would follow notification.
Preliminary Recommendation: We do not recommend the proposal to require notification of tree removal. In addition to the reasons stated in the response to the Tree Protection recommendation, we believe this proposal would be difficult to enforce. We note that to send notification through the Town, a resident would have to purchase the addresses of adjacent property owners from the Orange County Database or present evidence that they have included the address of adjacent property. They would also be required to provide stamped, pre-addressed envelopes to the Planning Department and observe a 10-day wait period before taking any action. A 10-day wait period is not required by the Town for any other activity. We also believe that this recommendation would present administrative challenges regarding enforcement.
Fences: The Land Use Management Ordinance does not restrict building fences that are below six feet in height. Fences taller than six feet are not allowed to be built inside the setbacks as defined by the zoning district. The Clarion Associates recommendation would require fences in the front yard and taller than 2.5 feet to be no more than 50 percent opaque. All fences located in the front yard, with street frontage, would be limited to a maximum fence height of 4 feet.
Preliminary Recommendation: We also recommend establishing the restrictions on fences as proposed. We believe that this regulation would address concerns raised by residents of the neighborhood.
Neighborhood Conservation District Boundary: The Clarion Associates recommendation states that the boundary of the neighborhood has been an open discussion throughout the process, with specific concerns about the inclusion of the Winter Drive Subdivision. The original petition from the Morgan Creek/Kings Mill Road neighborhood included the Winter Drive Subdivision in its boundary line. However, a petition submitted on September 25, 2005, included three out of six property owner’s signatures in the Winter Drive Subdivision requesting not to be included in the Neighborhood Conservation District. Additional petitions about the inclusion and exclusion of the Winter Hill Subdivision were submitted at the February 21, 2006 Planning Board meeting.
We offer arguments for and against inclusion of the area. Reasons to include the Winter Drive Subdivision in the Neighborhood Conservation District boundary include:
Reasons for not including the Winter Drive Subdivision include:
Clarion Associates’ recommendation is to include the subdivision because, “on balance, the proximity and potential impacts of development activity favor including the Winter Drive lots.”
Preliminary Recommendation: For the reasons mentioned above, we recommend the exclusion of the Winter Drive Subdivision from the Neighborhood Conservation District boundary. We believe the decision should be based on principles that are fair, objective, and will help guide boundary issues in the development of future Neighborhood Conservation Districts.
The Morgan Creek/Kings Mill Road Neighborhood Conservation District is proposed as a Zoning Atlas Amendment. The Land Use Management Ordinance requires the Town Manager to: 1) conduct an evaluation of the proposed rezoning; 2) present a report to the Planning Board; 3) notify property owners of the proposal; 4) hold a public hearing; and 5) present a report and recommendation to the Town Council.
Public Notice
On April 26, 2006, notice of the public hearing was sent to the property owners and owners of property within 1,000 feet of the properties proposed for rezoning (please see Attachment 3). Notice of the proposed rezoning was also included in the Town Week section of the Chapel Hill News on Sunday, April 30, and Sunday, May 7. Copies of the agenda materials for the proposed rezoning are available in the Town Clerk’s office. Documents are also available on the Town’s website (www.townofchapelhill.org).
Format Tonight
The Council is holding a public hearing to receive citizen comment on a proposed rezoning. Typically, the Council refers comments made at the public hearing to the Manager and Town Attorney for a follow-up report. We anticipate returning to the Council with a follow up report for consideration on June 12, 2006.
Protest Petitions
By law, formal “Protest Petitions” may be filed against this rezoning. A formal Protest Petition that meets legal requirements would increase the number of votes needed to enact this rezoning. The notice mailed on April 26, 2006 included a statement that information on protest petitions was available from the Town Clerk or the Planning Department. If a protest petition is submitted and determined to be valid, a three-fourths vote by the Council would be required to enact the new zoning. The deadline for filing protest petitions with the Town Clerk was Wednesday, May 10, 2006. We will report at tonight’s Public Hearing regarding any valid protest petitions that have been submitted.
Zoning determines the type and intensity of uses and development that are allowed on a piece of land. In Chapel Hill, a rezoning may be requested in two ways: general use and conditional use rezoning requests. A general use rezoning request is to change the zoning to a different zoning district in which any of several kinds of developments and uses are permissible. A conditional use rezoning request is to allow development and uses only with approval of a Special Use Permit. The Morgan Creek/Kings Mill Road neighborhood rezoning proposal is a general use rezoning. The designation would be as an overlay zone.
The zoning designation of a property determines the range of land uses and development intensities permitted on the property. Article 4.4 of the Land Use Management Ordinance establishes the intent of Zoning Atlas Amendments by stating:
“In order to establish and maintain sound, stable, and desirable development within the planning jurisdiction of the Town it is intended that this Chapter shall not be amended except a) to correct a manifest error in the Chapter; or b) because of changed or changing conditions in a particular area or in the jurisdiction generally; or c) to achieve the purposes of the Comprehensive Plan.
It is further intended that, if amended, this Chapter be amended only as reasonably necessary to the promotion of the public health, safety, or general welfare, and in conformance with the Comprehensive Plan.”
Comprehensive Plan
Land Use Plan
The entire area proposed for rezoning is designated as Low Residential (1-4 units/acre) on the Chapel Hill Land Use Plan, adopted May 8, 2000. Residential- 1 zoning districts are consistent with this land use designation.
Residential Conservation Areas
The area proposed for rezoning is designated as an “area most susceptible to change” and a “residential conservation area” in Figures 1 and 2 of the Town’s Comprehensive Plan. The Comprehensive Plan designates certain areas surrounding the downtown and University of North Carolina campus as “residential conservation areas” and “areas most susceptible to change” because they are considered to be particularly susceptible to change. This designation means, in part, that when policy choices that affect these areas are before the Town Council, the balance should tilt in favor of protection and preservation.
Zoning Justification
As noted in the “Zoning Atlas Amendments” section of this memorandum, there are three justifications for rezonings: a) to correct a manifest error in the chapter; or b) because of changed or changing conditions in a particular area or in the jurisdiction generally; or c) to achieve the purposes of the Comprehensive Plan. Only one justification needs to be met in order for the Council to approve a rezoning.
Following is comment on the three required considerations:
A. A rezoning is necessary to correct a manifest error.
We do not believe that the current Residential-1 zoning of this site is a manifest error.
B. A rezoning is necessary because of changed or changing conditions in a particular area or in the jurisdiction generally.
We do not believe that this rezoning is necessary because of changed or changing conditions in the area or in the jurisdiction generally.
C. A rezoning is necessary to achieve the purposes of the Comprehensive Plan.
Argument in Support: As noted above, the Comprehensive Plan identifies the area as a “residential conservation area”. Because of its proximity to the downtown and the main campus of the University, it is reasonable to believe that the Morgan Creek/ Kings Mill Road neighborhood may be affected by growth pressures related to the demand for housing.
We believe creating a Neighborhood Conservation District for the Morgan Creek/Kings Mill Road neighborhood is consistent with the following Comprehensive Plan policies:
As noted above, the area is one of the “areas most susceptible to change” on Figure 1 of the Comprehensive Plan. The area is characterized by larger lots, and lots are dominated by woodland and tree stands. We believe that these homes and their settings have a cohesive character that is worth preserving. As noted above, the proposed rezoning is also consistent with the proposed area’s designation of Low Residential (1-4 units/acre) on the Town’s Land Use Plan.
Argument in Opposition: Section 7.2 of the Comprehensive Plan contains an objective to “establish policies, regulations, incentives and programs to promote the availability of a full range of housing types, densities, costs, and tenancy options in Chapel Hill, both within new developments and existing neighborhoods.” It could be argued that creating a Neighborhood Conservation District in the Morgan Creek/Kings Mill Road neighborhood may limit the potential for a variety of housing types and sizes.
Evaluation of Neighborhood Conservation District Plan
As described above, the proposed changes to the underlying zoning district are intended to meet the goals of the 2000 Comprehensive Plan to protect and preserve neighborhoods affected by their central location near the heart of Town.
In addition, the changes are intended to alter the allowable “building envelope” to result in buildings which fit into the fabric of the neighborhood and be compatible with surrounding development. If the overlay zoning provisions are adopted, the scale and massing of future development would be more in keeping with the existing character of the neighborhood.
When considering rezoning a property or properties in this case, one factor to be considered is the effect the rezoning may have on existing uses in the area, as well as any “nonconformities” that may result from the rezoning. Generally, the term “nonconforming” refers to lots, uses, or features that complied with regulations at the time the use or structure began, but which do not meet current regulations. Nonconforming uses and features are allowed to be reconstructed if damaged or destroyed. Attachment 4 contains an explanation of nonconformities.
Nonconforming Lot: The proposed recommendations for a Neighborhood Conservation District include a .6 acre minimum lot size. Existing lots below the .6 acre minimum lot size would become nonconforming lots. If the minimum lot size was increased to a .6 acre minimum, we believe that approximately 20 lots would become nonconforming lots.
For almost all circumstances, the status of a lot as a nonconforming lot poses no negative impacts for a single family residential property owner. If a nonconforming lot is vacant, the owner can still build a single family house. If a single family house already exists on a nonconforming lot, the house can be used, expanded, and rebuilt if destroyed. The impact of nonconforming lot status occurs when multiple, adjacent lots are held in common ownership and one or more is nonconforming. Chapel Hill’s Land Use Management Ordinance contains the following language: “Where a nonconforming lot abuts another lot of record (whether conforming or nonconforming) held in the same ownership at or subsequent to enactment of this Chapter, such lots shall be combined or recombined as necessary to form a conforming lot or lots and shall not thereafter be subdivided except in compliance with all of the requirements of this Chapter.”
Nonconforming Use: A nonconforming use is a land use that does not conform to the Land Use Management Ordinance regulations. We are not aware of any nonconforming uses that would be created as a result of the Neighborhood Conservation District.
Nonconforming Feature: A nonconforming feature is a physical characteristic that does not conform to today’s setback, height or other intensity or design provisions of the Ordinance. Nonconforming features for existing development may continue to exist and may be reconstructed if the structure was damaged or destroyed. If enacted, the proposed Neighborhood Conservation District could result in the creation of nonconforming features.
RECOMMENDATIONS
Planning Board Recommendation: On March 7, 2006 the Planning Board voted to recommend a Neighborhood Conservation District for the Morgan Creek/Kings Mill Road neighborhood as described in the attached Summary of Planning Board Action (please see Attachment 5) and outlined below.
Manager’s Preliminary Recommendation: We believe that creating a Neighborhood Conservation District for the Morgan Creek/Kings Mill Road neighborhood is consistent with the Comprehensive Plan and the Land Use Management Ordinance, and therefore recommend that the Council enact the attached ordinance approving the proposed Zoning Atlas Amendment.
Following tonight’s Hearing, we will complete a Neighborhood Conservation District Plan for the Morgan Creek/Kings Mill Road Neighborhood. The Neighborhood Conservation District Plan would detail the guidelines for the Neighborhood Conservation District and the boundary. The Plan would be incorporated as part of the Land Use Management Ordinance, and would be subject to modification in the same manner as any other amendment to the Zoning Atlas.
The Plan will be prepared following the Public Hearing tonight and will be presented when the Hearing is continued at the time this returns for Council consideration.
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Summary of Proposed Recommendations |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Summary of Citizen Comments |
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1. Minimum Lot Size |
.39 acre (17,000 square feet) |
.6 acre (26,000 square feet) |
.6 acre (26,000 square feet) |
.6 acre (26,000 square feet) |
Most generally supported .6 acre (26,000 square feet). Some felt that it might hurt property owners of undeveloped vacant lots that are smaller than .6 acres. |
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2. Minimum Street Setbacks for Single-Family Dwelling (or Single-Family Dwelling with Accessory Apartment) |
28 feet |
50 feet, except for lots that border Fordham Boulevard (would remain as is) |
50 feet, except for lots that border Fordham Boulevard (would remain as is) |
50 feet except for lots that border Fordham Boulevard (would remain as is) |
Comments from community members were supportive of 50 feet. Some expressed concern that the setback was too prohibitive. There were concerns expressed about properties that will become non-conforming and if that status might impact property value. |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Summary of Citizen Comments |
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3. Minimum Interior Setbacks for Single-Family Dwelling (or Single-Family dwelling with Accessory Apartment) |
14 feet, 17 feet for northern interior |
25 feet |
25 feet |
25 feet |
There were concerns expressed about properties that will become non-conforming and if that status might impact property value. |
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4. Maximum Building Height |
29 feet (primary) and 40 feet (secondary) |
Limit to 2 stories and an unfinished attic, above the level of the street. Maximum secondary building height as currently defined in Land Use Management Ordinance to be maintained at 40 feet |
29 feet (primary) and 40 feet (secondary) |
29 feet (primary) and 40 feet (secondary) |
Comments from community members were supportive of 29 feet (primary) and 40 feet (secondary). |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Summary of Citizen Comments |
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5. Maximum Floor Area Ratio for Single-Family Dwelling (or Single-Family Dwelling with Accessory Apartment) |
N/A |
.17 |
.17 |
.17 |
Comments from community members were generally supportive of .17. |
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6. Maximum Size for a Single-Family Dwelling (or a Single-Family Dwelling with Accessory Apartment) |
N/A |
6,500 square feet (with provision for variance) |
6,500 square feet (with provision for variance) |
6,500 square feet (with provision for variance) |
Comments from community members were supportive of 6,500 square feet. A few residents stated they would prefer a maximum of 5,000 square feet. |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Summary of Citizen Comments |
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7. Maximum Percent of Front Yard Used for Parking |
40% |
25% |
25% |
25% |
Comments from community members were supportive of 25%. Some residents were concerned that the percentage could be difficult for lots with topographical constraints. |
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8. Tree Protection |
No current regulations for single or two-family dwelling |
Require consultation with Town before clearing deciduous trees measured at 24” DBY or greater, except as part of construction and/or maintenance of permitted improvements, or to remove dead, diseased, or hazardous trees. |
No change to current regulations |
No Agreement
|
Comments from community members were supportive of the Tree Protection. One resident stated that 24” DBY was too big and should be smaller to protect smaller trees. Some residents supported a ban on clear-cutting lots. Clarion stated that there were many varied opinions on this topic. |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Summary of Citizen Comments |
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9. Notification of Tree Removal |
No current regulations for single or two-family dwelling |
Adjacent property owners must be notified through the Town (see Clarion recommendation for conditions) |
No change to current regulations |
No Agreement
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Comments from some community members were supportive of Notification. Some felt that it was too burdensome for property owners. |
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10. Fences |
No restrictions on fences below six feet in height |
Fences located in the front yard and taller than 2.5 feet shall be no more than 50% opaque. All fences located in the front yard, with street frontage, shall have a maximum fence height of 4 feet. |
Fences located in the front yard and taller than 2.5 feet shall be no more than 50% opaque. All fences located in the front yard, with street frontage, shall have a maximum fence height of 4 feet. |
Fences located in the front yard and taller than 2.5 feet shall be no more than 50% opaque. All fences located in the front yard, with street frontage, shall have a maximum fence height of 4 feet. |
A resident commented that this issue came up late in the discussion and was not something the neighborhood wanted in the beginning. Another resident stated that fences in the front yard should have a maximum height of 5 feet. |
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Land Use Regulation |
Current R-1 Zoning |
Clarion Associates Recommendation |
Manager’s Preliminary Recommendation |
Planning Board Recommendation |
Citizen Comment |
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11. Boundary |
N/A |
Include Winter Drive Subdivision |
Exclude Winter Drive Subdivision |
No Agreement
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Some property owners of the Winter Drive subdivision are in favor of inclusion in the boundary and some are opposed to inclusion. Other comments from community members were supportive of including Winter Drive in the boundary. |
May 15, 2006
