AGENDA #5e

 

MEMORANDUM

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

 

SUBJECT:       Request for Expedited Processing of Special Use Permit Application for Proposed McCorkle Place and for Ordinance Changes

 

DATE:             September 2 7, 2004

 

 

On September 7, 2004, the Town Council received two petitions from Joe Patterson regarding 213 East Franklin Street.  This memorandum responds to both petitions. 

 

·            One petition requests expedited processing for a Special Use Permit application, submitted for the proposed McCorkle Place development.  The McCorkle Place Development proposes changes and increased floor area at The Village Apartments, 213 East Franklin Street.  We are currently reviewing the Special Use Permit application. 

 

·            The second petition requests changes to the Land Use Management Ordinance that would allow the developer to renovate and make structural alterations without going through the Special Use Permit process. 

 

These petitions were referred to the Town Manager for review and recommendation.  We recommend no action on either petition.

 

BACKGROUND

 

Expedited processing grants priority status for review at every step of the process, and grants priority status in being scheduled on agendas of advisory boards and the Town Council.  A Special Use Permit application would normally take nine months to a year to be reviewed by all the required boards and commissions and to be heard at a Public Hearing.

 

Following approval, an application normally takes four to five months to obtain approval of detailed construction drawings and final plans, prior to obtaining a Building Permit.  The review process is often long because of the breadth and depth of review and analysis, and because many projects are usually being reviewed at any given time.

 

Of thirteen (13) applications currently seeking Town Council approval, six (6) have expedited processing status.  The following current applications awaiting Council review have previously been granted Expedited Processing:

 

·            Eastgate Shopping Center – Starbucks (Expedited Processing granted November 10, 2003);

·            229 North Graham Street – EmPOWERment Zoning Atlas Amendment and Special Use Permit (Expedited Processing granted September 23, 2002);

·            Southern Community Park Special Use Permit (Expedited Processing granted March 22, 2004);

·            Homestead Park Aquatic Center Special Use Permit Modification (Expedited Processing granted March 22, 2004);

·            Holy Trinity Church Special Use Permit (Expedited Processing granted May 24, 2004);

·            OWASA I-40 Booster Pump Station Special Use Permit (Expedited Processing granted June 30, 2004).

 

The following active applications awaiting Council review do not have expedited status:

 

·            Chapel Watch Zoning Atlas Amendment and Special Use Permit;

·            Montclair Subdivision;

·            Chancellor’s View Cluster Subdivision;

·            The Farm Special Use Permit;

·            Montessori School Special Use Permit;

·            Wilson Assemblage Special Use Permit;

·            Chapel Hill North Special Use Permit.

 

Fourteen (14) other applications that are in Final Plan review have recently been approved by the Town Council.  Of these fourteen (14) applications that have been approved by the Town Council, eight (8) have expedited processing status. 

 

In total, of the applications both seeking approval and that have been approved by the Council, fourteen (14) of the 27 applications have expedited processing status.

 

DISCUSSION

 

First Petition: Request for Expedited Processing:  The first petition requests expedited processing status for a Special Use Permit application.  We understand that the application is proposing to convert the Village Apartments into 8 dwelling unit condominiums with one unit available for affordable housing.  A copy of the petition is included as Attachment 1.  The proposal also seeks to reduce the number of parking spaces from 23 to 15, create a new buffer area along a section of Robertson Lane, change traffic circulation, and reduce vehicle trips. 

 

Staff Response: We follow the Council-endorsed criteria listed below in making recommendations to Council on request for expedited processing:

 

1. Recommend expedited processing only in cases where there is a public interest or public objective involved.
2. Recommend expedited processing only when a project that involves public interest would be harmed by following normal rules of procedure.
3. Avoid expedited processing in situations where other applications that do not carry this special status would be delayed.

 

Several development applications are currently working toward being placed on the Council’s Public Hearing schedule.  The impact of granting expedited processing for McCorkle Place is that one less space would be available on the Council’s schedule for which other applications are competing.

 

We have previously reported to the Council that workload demands in the Planning Department are at historically high levels, exceeding our capacity to process applications and respond to requests in as timely a manner as would be typically expected.  This fact, combined with the Council’s direction that breadth and depth of analysis not be compromised when expedited status is granted, and the fact that fourteen (14) other active projects currently have expedited status, means that granting expedited status to this application would have limited effect on the project’s review process. 

 

In addition, we do not believe that the proposal as submitted meets any of the three criteria described above.  Accordingly, we do not recommend that the Council grant Expedited Processing Status for the proposed McCorkle Place development.

 

Projects that have been granted expedited processing are identified in Attachment 2.

 

Second Petition:  Request for Changes to the Land Use Management Ordinance:  The developer proposes to renovate the Franklin Street building and convert the 35 rental dwelling units to 8 condominium ownership units.

 

The existing development at 213 E. Franklin Street has several nonconforming features, including too much floor area, too tall a structure, inadequate setbacks, and inadequate buffers.  The Land Use Management Ordinance states that properties with nonconforming features can continue to be used, maintained, and reconstructed if demolished, but that no action can be taken which increases the degree or extent of the nonconforming feature.  The Ordinance goes on to say that, for a property with a nonconforming feature, any enlargement, extension or structural alteration shall conform to all current regulations. 

 

Accordingly, the owner of this property can make repairs or do alterations to the structure as long as the building is not expanded or enlarged, and as long as no structural alteration is involved.  In this case, the property owner wants to increase the floor area of the building and undertake renovations that involve structural alterations; therefore the Land Use Management Ordinance regulations would not allow such activity, and the Town Manager could not issue permits for such activity.

 

The Ordinance does contain a provision that could allow the owner to proceed, if the Council agrees.  The Ordinance provides that the property owner in a case such as this can apply for a Special Use Permit, and in the context of that Special Use Permit application ask the Town Council to modify Ordinance regulations for that particular property.  In this case, the owner has applied for a Special Use Permit, and asked that the Council agree to modify regulations that specify floor area, height, setback, and buffer requirements.  If the Council makes a finding that public purposes would be satisfied by modifying the regulations as requested, the Council may approve the Special Use Permit and the renovation could go forward.

 

The second petition asks that the Land Use Management Ordinance be amended in a manner that would allow this property owner to pursue renovation of the building and conversion to condominium without needing to request Town Council approval of a Special Use Permit.

 

Staff Comment:  Changing the Land Use Management Ordinance to allow this development to proceed with an administrative action only would mean changing the provisions that address nonconforming features.

 

In this case, the sequence of considerations goes as follows:

 

1. The developer wishes to change from 35 units to 8.
2. We understand State Building Code requires an elevator for a building renovation.
3. Retrofitting a building to incorporate an elevator is clearly a structural alteration, by definition in the Land Use Management Ordinance and by common meaning of the words.

 

We believe that the nonconforming provisions of the Ordinance are purposefully written and an important component of Chapel Hill’s growth management regulations.  The conceptual foundation for the regulations is as follows:

 

• If a land use has been lawfully created, and then regulations change, a property owner has a legitimate interest in continued use of property as originally authorized.  Continued use must include ability to repair and maintain, and the Council has determined also includes ability to rebuild if destroyed.  A Council member coined a phrase during the Council’s last discussion of nonconformities:  “What you bought is what you’ve got.”  The Council has consistently ruled that an existing use should not be harmed by changes to regulations.

 

• The Council has also consistently ruled that all new development must comply with rules in place at the time development is proposed.  This has always included (and, we believe, must include, in order to be fair and consistent) new expansions of existing development.  Were that not the case, the effectiveness of any new regulations would be significantly impaired.

 

We would not recommend a change that would allow an existing nonconforming use, or a use with nonconforming features, to be expanded, enlarged, or structurally altered.   That kind of change would allow expanded development throughout Town that would not meet stormwater requirements, tree protection requirements, size restrictions, and other regulations that are currently viewed as important to the Town.  In this case, the proposal involves increasing floor area, which cannot be permitted administratively.  If the plan were altered so as to not increase floor area, the proposal still could not be approved administratively because of the structural alteration.  We do not recommend changing these important rules for dealing with nonconforming situations, and believe that the appropriate process for the developer to seek relief is to apply for a Special Use Permit, seeking modification of regulations for this property.

 

If the property owner was to seek to change regulations Town-wide (instead of seeking modification for this property only), the process would be as follows:  The owner could submit an application for amendment to the Land Use Management Ordinance ($800 fee).  Typically a text amendment change would take approximately 6-9 months to go through the required process, which includes a Public Hearing.  During that review period, Town staff would evaluate the impact of the proposed change on other nonconforming situations around Town. 

 

We do not recommend any action on this petition.

 

RECOMMENDATION

 

Manager’s Recommendation:  Regarding the request for expedited processing of the Special Use Permit application, adoption of the attached resolution would grant expedited processing for McCorkle Place application, if the Council chooses to grant this request. We do not recommend that the Council adopt the attached resolution.

 

Regarding the request for changes to the regulations such that a Special Use Permit would not be required, we do not recommend that the Council call a hearing to consider such a text amendment.  Instead, we recommend that the Council refer the applicant to the amendment application process. 

 

ATTACHMENTS

 

1. Petition requesting Expedited Processing (p.7).
2. Petition requesting changes to Land Use Management Ordinance (p. 9).
3. List of Projects Granting Expedited Processing (p. 11).

 

A RESOLUTION DIRECTING EXPEDITED PROCESSING IN THE REVIEW OF A SPECIAL USE PERMIT APPLICATION FOR MCCORKLE PLACE (2004-09-27/R-12)

 

WHEREAS, the Town of Chapel Hill has received a petition for McCorkle Place requesting expedited processing of a Special Use Permit application seeking approval of 8 condominium units; and

 

WHEREAS, the Town Council finds that there is a significant public interest associated with development of this application;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Town Manager is directed to expedite processing of a Special Use Permit application for McCorkle Place in a manner that will speed review without sacrificing breadth or depth of analysis.

 

This the 27^th day of September, 2004.