4i-Calling Public Hearings on Changes to the LUMO Regarding Provision of Recreation Requirements and Payments in Lieu

MEMORANDUM

to: Roger L. Stancil, Town Manager

from: Ray (Butch) Kisiah, Parks and Recreation Director

Bill Webster, Assistant Parks and Recreation Director

J.B. Culpepper, Planning Director

SUBJECT: Calling Public Hearings on Changes to the Land Use Management Ordinance Regarding Provision of Recreation Requirements and Payments in Lieu

DATE: January 26, 2009

PURPOSE

Adoption of the attached resolution would call a Public Hearing for April 20, 2009, to consider language amending various sections of Article 5.5 of the Land Use Management Ordinance. The resolution would also call a June 15, 2009 public hearing to consider language related to requiring recreation space requirements for non-residential development that is proposed in the form of Special Use Permit applications.

BACKGROUND

On July 10, 2008, House Bill 2580 was ratified by the General Assembly. The bill provides enabling legislation that allows the Town to make changes to the Town’s Land Use Management Ordinance related to payments in lieu of Recreation Area and Recreation Space.

We have also identified sections of Article 5.5 of the Land Use Management Ordinance that could be improved to help clarify the intent of the ordinance and shift resources required for recreation purposes to more effective uses.

DISCUSSION

In the following section we discuss provisions related to Recreation Area and Improved Recreation Space. These terms have very different meanings under State law and the Land Use Management Ordinance.

Recreation Area is required whenever a developer proposes a major subdivision of land for residential purposes. Recreation Area is land set aside for the use of future residents, but is not required to be improved with recreational facilities.

Improved Recreation Space is required when a developer proposes multi-family residential development such as apartments, condominiums, or other planned unit developments. Recreation Space is land that must be improved for active recreation. Typical Recreation Space improvements have included: swimming pools, tennis courts, play areas, and basketball courts.

Please see the comparative information in the chart below:

	RECREATION AREA	RECREATION SPACE
Required for major subdivisions	●
Required for multi-family developments		●
Land only required	●
Improvements required (tennis courts, play equipment, pools, etc)		●
Council can currently require payments in lieu (2 acres or less)	●
Council can require land for greenway system	●	●

ITEMS PROPOSED FOR APRIL 20, 2009 PUBLIC HEARING

We have identified a number of potential modifications to Article 5.5 of the Land Use Management Ordinance. Most of these changes could be ready for Board and Commission review in February and for a public hearing on April 20, 2009. These proposed changes are intended to clarify the intent of the ordinance and shift resources required for recreation purposes to more effective uses. The following potential modifications are proposed to be included in the April 20, 2009 public hearing report:

Requiring Recreation Area Payments in Lieu: Currently Article 5.5.(d)(2) allows the Council to require payments in lieu of Recreation Area if the required area is 2 acres or less. In 2008, the North Carolina General Assembly enacted legislation that gives the Town authority to increase the threshold for requiring payments in lieu of Recreation Area from the current 2 acres to 4 acres or less.

We think that increasing the limit would give the Council more flexibility to ensure that resources intended for improving recreational opportunities in the Town are used in the most effective manner. In some cases the future residents of a proposed subdivision could be better served if nearby public facilities are improved using a payment in lieu rather then providing an unimproved Recreation Area within the subdivision.

Requiring Improved Recreation Space Payments in Lieu: Currently the Town LUMO has no provision under which to require payments in lieu of Improved Recreation Space, although we have a formula for calculating voluntary payments. The General Assembly has enacted legislation that now gives the Town authority to require payments in lieu of Recreation Space.

Adding the provision to require payments in lieu of Recreation Space to the Land Use Management Ordinance would give the Council more flexibility in dealing with multi-family development applications. We believe that in many past cases the provision of Improved Recreation Space on-site has been ineffective. This seems to be especially true with smaller developments that do not have enough useable land and/or are not obligated to provide enough land for meaningful recreation facilities. We believe that in some cases resources could be better spent by improving nearby public facilities instead of trying to provide inappropriate Improved Recreation Space improvements on projects that would not have an adequate amount or configuration of land to provide beneficial facilities for their residents.

Deletion of Exemption Provision: The Council could consider deleting the current provision, 5.5.2.(e)(1), that allows the Council to exempt Recreation Area requirements if the required Recreation Area is less than 3,000 square feet. Several years ago the Council streamlined the process for calculating payments in lieu of providing Recreation Area. The process is no longer expensive and time consuming. We believe that instead of giving exemptions to these smaller projects, the Council should require payments in lieu of Recreation Area.

Definition of Recreation Area: The current Land Use Management Ordinance does not include a definition of Recreation Area. We believe that such a definition might be useful to all parties involved in the development process.

Definition of Recreation Space: During the development review process we frequently deal with issues related to the definition of Improved Recreation Space. The ordinance specifically requires that “active” recreation space be provided. However, it is not unusual for developers to initially propose improvements such as lawn areas, benches, and picnic tables for their active recreation requirements. Developers frequently complain that the ordinance is too vague in its definition of what exactly Recreation Space should entail. We propose to better define what types of improvements are acceptable, and what types are not. The definition could include examples of active recreation facilities.

Staff is of the opinion that the ordinance could be improved if we provide a definition of Improved Recreation Space that emphasizes the need to provide active recreational elements. The definition could also provide guidance on how many passive recreation elements would be allowed. For example, some picnic tables and benches might be counted toward the Recreation Space requirements if they are adjacent to a more active facility such as a basketball court.

Greenway Land Dedication: We propose modifying the current provision 5.5.2.(e)(3) that requires land be dedicated to the Town if it abuts a Greenway corridor identified in the Comprehensive Plan. The provision could be enlarged to include the same requirement if the project abuts a Greenway corridor identified in a greenway project Concept Plan or project Master Plan adopted by the Council. We currently have Council adopted concept plans for the Bolin Creek and Dry Creek Trails that vary in some ways from language in the Greenways Master Plan, which is a part of the Comprehensive Plan.

Calculation of Payments in Lieu of Recreation Space: We could clarify language in 5.5.2.(h) to better describe the method for determining how to calculate payments in lieu of Recreation Space. Recreation Space is calculated by multiplying the amount of required Recreation Space by a dollar amount established by the Council in each year’s budget. The language describing the process might be better crafted.

ITEM PROPOSED FOR JUNE 15, 2009 PUBLIC HEARING

Currently the Town does not require recreation space dedication for non-residential projects. We do have the authority to require such dedication for non-residential projects if the project is approved as a part of a Special Use Permit application. As noted above, the recently enacted legislation now allows the Town to require payments in lieu of recreation space and facilities for non-residential development for which a special use permit is required.

The provisions in State law that would allow us to require recreation space and facilities, and now, by extension through the local act, payments in lieu, require that we develop a fair basis for determining how much the payment in lieu of recreation space or facilities a developer should provide.

We believe that this is a more complicated issue that is going to require additional research and communication with other communities that impose such regulations. For that reason we are recommending a June 15 public hearing to address this issue.

RECOMMENDATION

We recommend that the Council provide any additional comments related to possible changes to Article 5.5 of the Land Use Management Ordinance and adopt the attached resolution to authorize the Manager to call a Public Hearing for April 20, 2009, to consider various changes to Article 5.5 of the Land Use Management Ordinance, as discussed in this memorandum.

In addition, the resolution would call a Public Hearing for June 15, 2009, to consider adding a requirement that Recreation Space be required for non-residential developments that are approved as part of a Special Use Permit. The public hearing would also include language that would give the Council the authority to require payments in lieu for any such Recreation Space.