Agenda #15 | Response to Petition from Bryan Properties – Request for Minor Change to Vilcom Special Use Permit Modification for Payment-In-Lieu of Greenway

AGENDA #15

MEMORANDUM

TO:	Roger L. Stancil, Town Manager
FROM:	J. B. Culpepper, Planning Director Gene Poveromo, Development Coordinator
SUBJECT:	Response to Petition from Bryan Properties – Request for Minor Change to Vilcom Special Use Permit Modification for Payment-In-Lieu of Greenway
DATE:	June 27, 2007

PURPOSE

This report responds to a May 14, 2007 petition from Bryan Properties requesting a minor change to the Vilcom Campus Special Use Permit with respect to stipulations requiring the construction of a greenway within a Duke Energy easement (Attachments 1 and 2). The Vilcom Campus is located north of the intersection of Weaver Dairy Road and Vilcom Center Drive.

Adoption of the attached Resolution A would endorse the Town Manager’s opinion that this request can be considered a minor change to the approved Special Use Permit Modification.

BACKGROUND

On November 8, 1999, the Council approved the Special Use Permit Modification for the Vilcom Campus authorizing construction of three office buildings with a total of 240,836 square feet of floor area. The approval also required that a greenway trail be constructed along the northern property line. The Greenways Master Plan calls for construction of a greenway trail paralleling the Interstate on the north side of Town. The Vilcom property is not directly adjacent to Interstate, but because of the high power lines was consider as an acceptable location for the greenway. The plans reviewed by the Council in 1999 identified a Duke Energy utility easement, along the north property line, as the available area for the proposed greenway.

The greenway stipulations from the Special Use Permit read as follows:

· Greenway Trail Construction: That the greenway trail along the northern property line shall be constructed with the Town standard six inches of compacted base.

· Greenway Trail Easement: That a 16' wide deed of easement to the Town shall be provided over the greenway trail along the northern property line, providing public access for pedestrians, non-motorized vehicles, motorized wheelchairs, Town maintenance vehicles and other public purposes consistent with the Chapel Hill Greenways Comprehensive Master Plan. The easement documentation shall be approved by the Town Manager and recorded on the final plat prior to issuance of a Zoning Compliance Permit. and that an associated easement be provided.

The following year the Town issued a Zoning Compliance Permit for construction that included the three approved office buildings and the greenway in the Duke Energy easement. As construction proceeded, the applicant decided to phase the construction of the office buildings and greenway improvements into two phases. The initial phase included one office building; the second phase includes the two remaining office buildings and greenway. Prior to proceeding with the second phase of construction last year, the applicant applied for and received a revised Zoning Compliance Permit. This permit from 2006 reauthorized the construction of the two remaining office buildings and greenway, along with some minor site plan changes to parking and landscaping.

A copy of the 2006 Zoning Compliance Permit was provided to Duke Energy. Upon review of the permit, Duke Energy subsequently reconsidered the plans and their previous approval of the greenway and denied the applicant’s request to co-locate a greenway trail in their utility easement (Attachment 4). Upon receiving this information, the applicant began to work with Duke Energy in an effort to resolve this issue and obtain approval to construct the greenway in the easement. The Town participated in these meetings as well. The result of the discussion was that Duke Energy will not permit the construction of a greenway trail in the utility easement.

MINOR MODIFICATION OF SPECIAL USE PERMIT

The Land Use Management Ordinance provides guidance for minor changes to a Special Use Permit that may be approved administratively. However, because the Vilcom project was approved in 1999, it is subject to the regulation of the Development Ordinance. Under the regulations in the Development Ordinance, the Town Manager is authorized to make minor changes to Special Use Permit Modifications according to Section 18.5 of the Development Ordinance (attached).

APPLICANT’S PROPOSAL

Duke Energy’s policies regarding what may be located in their utility easements have become more stringent since the original Zoning Compliance Permit for Vilcom was approved in 2000. Prohibited from constructing the greenway within the easement corridor, the applicant is unable to fulfill the greenway trail stipulations of the approved Special Use Permit and therefore is seeking to modify the Special Use Permit. In response to the determination by Duke Energy to prohibit construction of the greenway in the utility easement, the applicant is offering a payment-in-lieu of the greenway trail. The applicant has been involved in discussions with the Parks and Recreation Department to determine the appropriate payment-in-lieu amount. The recommended figure, reviewed by the Town Manager, is a $51,600 payment-in-lieu of greenway facilities. We understand that this payment, if authorized, would be used by the Town towards the construction of the North Trail adjacent to Interstate-40.

Staff Comment: In this particular situation, we believe that the request by the applicant, to substitute a payment-in-lieu for the construction of the Vilcom greenway can be considered a minor change to the approved Special Use Permit Modification. We believe it would be reasonable to conclude that the requested change would not require evidentiary support in addition to that presented at the Public Hearing for the most recent Special Use Permit Modification. We have reviewed the record of the proceedings of the 1999 application and believe that the request could be considered a minor change.

Regarding the regulations (Section 18.5 Development Ordinance), this request does not propose a change in the boundaries, change of use, increase in floor area or parking, substantial physical or structural changes, substantial changes to access and circulation, or substantial changes to landscaping. We believe that the Town Manager could determine a payment-in-lieu of required greenway facilities, which Duke Energy will not allow to be constructed in their easement, to be a minor change to the Special Use Permit Modification, according to the provisions in Section 18.5 of the Development Ordinance.

RECOMMENDATION

We believe that the request by the applicant to change the greenway facility provisions in the Special Use Permit Modification for the Vilcom Campus is reasonable and could be considered a minor change. We recommend that the Council adopt the attached Resolution A, endorsing the Manager’s opinion that accepting a $51,600 payment-in-lieu of greenway facilities is a minor change.

Following the Council endorsement of the staff opinion, we would administratively approve a minor change to the Special Use Permit Modification for the Vilcom Campus to adjust the greenway facility provisions of the Special Use Permit Modification. Note that the associated deed of easement for the utility easement would also be adjusted in the Special Use Permit Modification.

Alternatively, the Council could conclude that the proposal is not a minor change and so advise the Town Manager (Please see Resolution B). In that circumstance, the applicant would need to submit a Special Use Permit Modification application or choose to keep the existing Special Use Permit Modification unchanged.

ATTACHMENTS

1. Request from the Bryan Properties dated May 14, 2007 (p. 6).

2. Map Showing Proposed Location Of Greenway Trail (p. 8).

3. Duke Energy Approval Letter of Final Plans, February 23, 2000 (p. 9).

4. Duke Energy Rejection Email of Final Plans, March 7, 2007 (p. 10).

5. Section 18.5 of the Development Ordinance (p. 11).

6. Approved Special Use Permit Modification (p. 13).