AGENDA #10

 

MEMORANDUM

 

TO:                  Mayor and Town Council

 

From:            W. Calvin Horton, Town Manager

 

Subject:       The UNC Faculty-Staff Recreation Association (aka The Farm): Application for Special Use Permit 

 

DATE:             December 6, 2004

 

INTRODUCTION

 

Tonight the Council continues the Public Hearing from November 15, 2004,regarding a Special Use Permit for the UNC Faculty-Staff Recreation Association. The proposal would allow demolition of an existing farmhouse and construction of a new 3,500 square foot clubhouse and patio at #1 Alice Ingram Drive. Adoption of Resolution A would approve the Special Use Permit application with conditions. Adoption of Resolution B would deny the request.

 

BACKGROUND

 

On November 15, 2004, a Public Hearing was held for consideration of a Special Use Permit application to authorize the demolition of a 1,913 square foot farmhouse and construction of a 3,500 square foot building with adjacent 2,500 square foot patio.

 

 

This package of materials has been prepared for the Town Council’s consideration, and is organized as follows:

 

¨      Cover Memorandum: Provides background on the development proposal, discusses the key issue raised at the November 15, 2004 Public Hearing, presents evidence in the record thus far in support of and in opposition to approval of the application, and offers recommendations for Council action and includes resolutions of approval and denial.

 

¨      Attachments: Includes a letter from a citizen, correspondence with the applicant, and the November 15, 2004 Public Hearing memorandum.

 

 

KEY ISSUE

 

We have identified one key issue associated with this development. The issue is discussed below.  

Lease Agreement: Presently the UNC Faculty-Staff Recreation Association development on UNC land is not paying ad valorem property taxes to Durham County and the Town of Chapel Hill. The Town sent a letter to Nancy Suttenfield, Vice-Chancellor for Finance and Administration at UNC, on February 11, 2004,requesting that the University review the lease agreement between the State and the Faculty-Staff Recreation Association, Inc. (see Attachment 8 from the November 15 memorandum). The property was annexed by the Town of Chapel Hill on June 30, 2000. The lease agreement, recorded in Book 439, Page 93, on July 8, 1976, at the Durham County Registry between The State of North Carolina and the Faculty-Staff Recreation Association, Inc. states:

 

“The Lessee agrees to pay ad valorem taxes to the proper taxing authorities on the real property covered by this lease and agreement and upon the improvements which are constructed thereon or installed therein. The Lessee hereby expressly waives any defense to payment of ad valorem taxes because the fee simple title to the said property remains in the State of North Carolina.”

 

In a letter to the Town Manager dated March 16, 2004, the UNC Faculty-Staff Recreation Association (the Association) cited its federal income tax exempt status as a way to explain its non-payment of local property tax (Attachment 10 from the November 15 memorandum).

 

Comment: In our November 15 Public Hearing memorandum we stated that we do not believe that fderal income tax exempt status releases the Association from the terms of the lease agreement. We further commented that unless this property has been duly granted exemption from ad valorem property taxes by the proper governmental authorities for some reason other than the reason waived by the terms of the Lease, we believe that it is appropriate to include, as a condition of this Special Use Permit, that the Association honor the requirements of their lease from the State of North Carolina and pay the ad valorem property taxes owed to the Town based on this Lease since June 30, 2000, when the land was annexed by the Town, and to continue to pay the ad valorem property taxes every year.

 

After the Hearing, in response to the Town’s concerns regarding the terms of the lease agreement, the Association requested that their attorney review the terms of the agreement. In a November 19, 2004 letter from its attorney (attached), the Association has identified an alternative basis for seeking exemption from local property taxes: language in a lease amendment executed subsequent to the original 99 year lease. The Town Attorney  responded to the November 19 letter by advising the attorney that the Association’s position with respect to the proposed condition of approval related to payment of local property taxes needs to be introduced in the record of the Council’s quasi-judicial hearing (ltters attached)  We anticipate that the Association may present its position on this matter this evening. 

 

While we believe the position taken in the November 19 letter has stronger arguments than the Association’s original response, we also believe there continues to be merit in the argument that the lease between the Association and the State establishes a commitment on the part of the Association to the State of North Carolina to pay local property taxes.  We also believe we have a duty and legal responsibility to seek to collect all taxes to which the Town is legally entitled.  And, while the Town is not a party to the lease between the Association and the State of North Carolina, the Town is clearly a direct beneficiary if our view that ad valorem taxes are to be paid is correct. 

 

Moreover, notwithstanding the opinion provided by the Association’s attorney, we believe there is nothing in the applicable law that would preclude the Association from reaching the conclusion that the Association should pay ad valorem property taxes just as other similar non-profit recreation corporations in this community, including the Chapel Hill Country Club, Chapel Hill Tennis Club, and Heritage Hills Recreation Club, pay local property taxes. The Association could determine that it is appropriate to pay these taxes at least for this year and subsequent years and that such payment would meet the intent of the parties to the 99 year lease between the State and the Association.  We encourage the Association to agree to do so and to accept the proposed condition of approval.  Alternatively, the Association may take the position when this quasi judicial hearing reconvenes this evening that, based on the opinion of its attorney, the lease with the State of North Carolina does not legally obligate the Association to pay property taxes to the Town and that therefore, it will not accede to the proposed condition of approval requiring it to do so.    

 

If the Association does make such an objection to the proposed condition of approval  part of the record, we propose the condition of approval related to property taxes be revised to read as follows:

 

            “The Farm shall, within 30 days after the adoption of this resolution, write to the Attorney General of North Carolina and ask for a written opinion regarding whether the lease between the Association and the State of North Carolina, as amended, obligates the Association to pay ad valorem property taxes to the Town of Chapel Hill.  The Association agrees to abide by the interpretation and opinion provided by the Attorney General.  The Association further shall notify the Town of its seeking this opinion and shall indicate in its inquiry to the Attorney General that the Town has been authorized by the Association to provide information related to this matter for the consideration by the Attorney General prior to the Attorney General’s rendering his opinion.”            

 

EVALUATION OF THE APPLICATION

 

The standard for review and approval of a Special Use Permit application involves consideration of four findings of fact that the Council must consider for granting a Special Use Permit. Based on the evidence that is accumulated during the Public Hearing, the Council will consider whether it can make each of the four required findings for the approval of a Special Use Permit.  If, after consideration of the evidence submitted at the Public Hearing, the Council decides that it can make each of the four findings, the Land Use Management Ordinance directs that the Special Use Permit shall then be approved. If the Council decides that the evidence does not support making one or more of the findings, then the application cannot be approved and, accordingly, should be denied by the Council.

 

Tonight, based on the evidence in the record thus far, we provide the following evaluation of this application based on the four findings of facts that the Council must consider for granting a Special Use Permit.

 

 

Finding #1:  That the use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare.

 

 

We believe the evidence in the record to date can be summarized as follows:

 

Evidence in support:  Evidence in support of this finding for the application has been provided by the applicant’s Statement of Justification (provided as Attachment #15 to the November 15, 2004 memorandum), including references to replacement of an existing building and estimates of no new traffic to be generated by this replacement.    

 

Evidence in opposition:  We have not identified any evidence offered in opposition to Finding #1.

 

We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.

 

 

Finding #2:  That the use or development complies with all required regulations and standards of the Land Use Management Ordinance.

 

 

We believe the evidence in the record to date can be summarized as follows:

 

Evidence in support:  Evidence in support of Finding #2 for this application has been provided by the applicant’s Statement of Justification (provided as Attachment #15 to the November 15 memorandum), noting compliance with regulations.    

 

Evidence in opposition:  We have not identified any evidence offered in opposition to Finding #2.

 

We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.

 

 

Finding #3:  That the use would be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property, or that the use or development is a public necessity.

 

We believe the evidence in the record to date can be summarized as follows:

 

Evidence in support:  Evidence in support of Finding #3 for this application has been provided by the applicant’s Statement of Justification (provided as Attachment #15 to the November 15 memorandum), noting continuation of the existing use.   

 

Evidence in opposition:  We have not identified any evidence offered in opposition to Finding #3.

 

We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.

 

 

Finding #4:  That the use or development conforms with the general plans for the physical development of the Town as embodied in the Land Use Management Ordinance and in the Comprehensive Plan.

 

 

We believe the evidence in the record to date can be summarized as follows:

 

Evidence in support:  Evidence in support of Finding #4 for this application has been provided by the applicant’s Statement of Justification (provided as Attachment #15 to the November 15 memorandum), citing the rural character of the property, minimizing land disturbance, and conserving the natural setting.

 

Evidence in opposition:  We have not identified any evidence offered in opposition to Finding #4.

 

We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.

SUMMARY

 

We have attached a resolution that includes standard conditions of approval as well as special conditions that we recommend for this application. With these conditions, we believe that the Council could make the four findings necessary in order to approve the application. The Manager’s recommendation incorporates input from all Town departments involved in review of the application.

 

RECOMMENDATIONS

 

Recommendations are summarized below. Please see summaries of board actions and recommendations in the November 15, 2004 Public Hearing memorandum attachments.  

 

The recommendations of the Planning Board, Transportation Board, Community Design Commission, Bicycle and Pedestrian Advisory Board, and Manager are all included in Resolution A.

 

Manager’s Recommendation:  Based on the information in the record to date, we believe that the Council could make the findings required to approve the Special Use Permit application. We recommend that the Council adopt Resolution A, approving the application with conditions. Resolution A includes the recommendations of the advisory boards. We have also added to Resolution A a stipulation regarding ad valorem taxes as noted in the Key Issue section.

 

Resolution B would deny the application.

 

ATTACHMENTS

 

1.      Letter from Joe Capowski (p. 13).

2.      November 19, 2004 letter from Association’s Attorney (with Second Amendment to Lease attachment) (p. 16).

3.      December 1, 2004 letter from Town Attorney (p. 40).

4.      November 15, 2004 Public Hearing Item (p. 41).

 

RESOLUTION A

(Manager’s Recommendation)

 

A RESOLUTION APPROVING AN APPLICATION FOR A SPECIAL USE PERMIT FOR UNC FACULTY-STAFF RECREATION ASSOCIATION (AKA THE FARM) (2004-12-06/R-13a)

 

BE IT RESOLVED by the Council of the Town of Chapel Hill that it finds that the Special Use Permit application proposed by Dixon Weinstein Associates for UNC Faculty-Staff Recreation Association (aka The Farm) on property identified as Durham County Tax Map 491, Block 6, Lot 8 (PIN 979804708300) if developed according to the site plan dated June 1, 2004, (revised August 10, 2004), and conditions listed below:

 

1.      Would be located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;

 

2.      Would comply with all required regulations and       standards of the Land Use Management Ordinance;

 

3.      Would be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property; and 

 

4.      Would conform with the general plans for the physical         development of the Town as embodied in the Land Use Management Ordinance and in the Comprehensive Plan.

 

BE IT FURTHER RESOLVED that the Town Council hereby approves the application for a Special Use Permit for UNC Faculty-Staff Recreation Association (aka The Farm) in accordance with the plans listed above and with the conditions listed below:

 

Stipulations Specific to the Development

                                                                       

1.      That construction begin by December, 6, 2006 (two years from approval date) and be completed by December 6, 2007   (three years from approval date).

 

2.      Land Use Intensity: This Special Use Permit authorizes a Non-Profit Recreation Facility and land use intensity requirements and dimensional standards as specified below:

 

Land Use Intensity

Net Land Area

28.25 acres

Total # of Buildings

6

Maximum Floor Area

16,000 sq ft

Maximum Impervious Surface Area

197,257 sq ft

Maximum # of Parking Spaces

205

Minimum # of Bicycle Spaces

52

 

3.      Lease Agreement:  That the applicant shall pay ad valorem taxes to the Town of Chapel Hill Tax Office due from the date of annexation, June 30, 2000, and annually in accordance with the terms of the Lease Agreement dated July 8, 1967 recorded in Book 439, Page 93 of the Durham Register of Deeds Office.

 

Stipulations Related to Transportation Issues

 

4.      Sidewalk Extension:  That the existing Chapel Hill gravel sidewalk be extended approximately 70 feet north along the existing gravel parking area adjacent to the new clubhouse and the sidewalk shall be edged with 6 x 6 timbers.

 

5.      Bicycle Parking:  That the development shall comply with the Town’s Design Manual for bicycle parking standards as follows:

 

 

Total Number or Required Bicycle Spaces

52

Number of Class I Spaces

6

Number of Class II Spaces

46

 

      A portion of the parking spaces shall be provided at the pool area.

 

Stipulations Related to Landscaping and Architectural Issues

 

6.      Sight Triangle Clearance:  That clearing and pruning of the sight triangles at Alice Ingram Drive intersections with onto Barbee Chapel Road be conducted and that a note be place on the Final Plans indicating that prior to any sight distance clearing and/or pruning at the Barbee Chapel Road entrance and exit, the applicant shall obtain approval from the Town’s Urban Forester.

 

7.      Shading Plan: That prior to issuance of a Zoning Compliance Permit, a Shading Plan must be submitted and approved by the Town Manager demonstrating compliance with Town regulations.

8.      Landscape Protection Plan:  That a detailed Landscape Protection Plan, clearly indicating which rare and specimen trees shall be removed and preserved, as well as all significant tree stands, and including Town standard landscaping protection notes, shall be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

9.      Landscaping Plan: That a detailed landscape plan including a landscape maintenance plan, be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.  The landscape plan shall indicate the size, type, and location of all proposed plantings.

 

10.  Tree Protection Fencing:  That the limits of land disturbance with tree protection fencing, shall be shown on the Landscape Protection Plan, to be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

 

11.  Building Elevations:  That the Community Design Commission approve building elevations, including the location and screening of all HVAC/Air Handling Units for this project, prior to issuance of a Zoning Compliance Permit.

 

12.  Lighting Plan:  That the Community Design Commission approve a lighting plan for this project prior to issuance of a Zoning Compliance Permit.

 

Stipulations Related to Environmental Issues

 

13.  Watershed Protection District / Impervious Surface Limits: That the site shall comply with Article 3.6.4 of the Land Use Management Ordinance. Impervious surface area is authorized at 197,257 square feet.

 

14.  Stormwater Management Plan: That prior to the issuance of a Zoning Compliance Permit the applicant shall submit a Stormwater Management Plan sealed by an engineer in the State of North Carolina including design calculations and design drawings for all stormwater facilities (including the bio-retention basin and level spreaders) for review and approval by the Town Manager. The plan shall include low-impact stormwater management solutions and best management practices, including but not limited to bio-retention, pervious pavements, underground storage, infiltration trenches, vegetative swales and similar techniques. 

 

The plan shall be based on the 1-year, 2-year, and 25-year frequency, 24-hour duration storms, where the post-development stormwater run-off rate shall not exceed the pre-development rate and the post-development stormwater runoff volume shall not exceed the pre-development volume for the local 2-year frequency, 24-hour duration storm event. Engineered stormwater facilities shall also remove 85% total suspended solids and treat the first inch of precipitation utilizing NC Division of Water Quality design standards.

 

15.  Storm Drainageway Easement: That all stormwater management improvements, outside public right-of-way, shall be located inside reserved storm drainageway easements, per Town guidelines, to be approved by the Town Manager prior to the issuance of a Zoning Compliance Permit.

 

16.  Stormwater Operations and Maintenance Plan: That the applicant shall provide a Stormwater Operations and Maintenance Plan for all engineered stormwater facilities. The plan shall include the owner's financial responsibility and include the maintenance schedule of the facilities to ensure that it continues to function as originally intended and shall be approved by the Town Manager, prior to the issuance of a Zoning Compliance Permit.

 

17.  Resource Conservation District: That the applicant shall identify all areas of Resource Conservation District on the Final Plans prior to issuance of a Zoning Compliance Permit. No work is authorized in the Resource Conservation District.


 

18.  State or Federal Approvals:  That any required State or federal permits must be approved by the appropriate agencies and copies of the approved permits be submitted to the Town Manager prior to the issuance of a Zoning Compliance Permit.

 

19.  Erosion Control: That a detailed soil erosion and sedimentation control plan, including provision for maintenance of facilities and modifications of the plan if necessary, be approved by the Durham County Erosion Control Officer and the Town Manager prior to issuance of a Zoning Compliance Permit. 

 

20.  Silt Control: That the applicant takes appropriate measures to prevent and remove the deposit of wet or dry silt on adjacent paved roadways.

 

Stipulations Related to Utility and Service Issues

 

21.  Solid Waste Management Plan: That a Solid Waste Management Plan, including provisions for recycling salvageable materials from the deconstruction of the farmhouse, recycling, and for managing and minimizing construction debris and removal of existing residential debris piles, shall be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

 

22.  Utility/Lighting Plan Approval: That the final Utility/Lighting Plan be approved by Duke Power Company, Orange Water and Sewer Authority, BellSouth, Public Service Company, Time Warner Cable, and the Town Manager prior to issuance of a Zoning Compliance Permit.

 

23.  Utility Line Placement: That all new utility lines shall be placed underground. The applicant shall indicate proposed off-site utility line routing and upgrades required to service the site on Final Plans, to be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

 

24.  Fire Flow: That a fire flow report, shall be prepared and sealed by a registered professional engineer, and showing that flows meet the minimum requirements of the Town Design Manual, to be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

 

Stipulations Related to Miscellaneous Issues

 

25.  Construction Management Plan: That a Construction Management Plan, indicating how construction vehicle traffic will be managed, shall be approved by the Town Manager prior to the issuance of a Zoning Compliance Permit.

 

26.  Open Burning: That the open burning of trees, limbs, stumps and construction debris association with this development is prohibited unless it is demonstrated to the Town Manager or his designee that no reasonable alternative means are available for removal of the materials from the subject property. The Fire Marshall may establish safety standards, which must be met in order to receive a permit.

 

27.  Detailed Plans: That final detailed site plans, grading plans, utility/lighting plans, stormwater management plans (with hydrologic calculations), and landscape plans and landscape maintenance plans be approved by the Town Manager prior to issuance of a Zoning Compliance Permit, and that such plans conform to the plans approved by this application and demonstrate compliance with all applicable conditions and the design standards of the Land Use Management Ordinance and the Design Manual.

 

28.  As-Built Plans: That as-built plans in DXF binary format using State plane coordinates, shall be provided for street improvements and all other existing or proposed impervious surfaces prior to issuance of the first Certificate of Occupancy.

 

29.  Construction Sign: That the applicant shall post a construction sign that lists the property owner’s representative and telephone number, the contractor’s representative and telephone number, and a telephone number for regulatory information at the time of issuance of a Building Permit, prior to the commencement of any land disturbing activities. The construction sign may have a maximum of 32 square feet of display area and may not exceed 8 feet in height and is removed within 7 days of issuance of a Certificate of Occupancy. The sign shall be non-illuminated, and shall consist of light letters on a dark background.

 

30.  Continued Validity: That continued validity and effectiveness of this approval is expressly conditioned on the continued compliance with the plans and conditions listed above.

 

31.  Non-severability: That if any of the above conditions is held to be invalid, approval in its entirety shall be void.

 

BE IT FURTHER RESOLVED that the Council hereby approves the application for the Special Use Permit application for UNC Faculty-Staff Recreation Association (aka The Farm) as proposed by Dixon Weinstein Associates in accordance with the plans and conditions listed above.

 

This is the 6th day of December, 2004.

RESOLUTION B

(Denying the Special Use Permit Application)

 

A RESOLUTION DENYING AN APPLICATION FOR A SPECIAL USE PERMIT FOR UNC FACULTY-STAFF RECREATION ASSOCIAITION (AKA THE FARM) (2004-12-06/R-13b)

 

BE IT RESOLVED by the Council of the Town of Chapel Hill that it finds that the Special Use Permit application proposed by Dixon Weinstein Associates for the UNC Faculty-Staff Recreation Association (aka The Farm) on property identified as Durham County Tax Map 491, Block 6, Lot 8 (PIN 979804708300) if developed according to the site plans dated June 1, 2004, (revised August 10, 2004),

 

1.      Would not be located, designed, and proposed to be operated so as to       maintain or promote the public health, safety, and general welfare;

 

2.      Would not comply with all required regulations and standards of the Land Use Management Ordinance;

 

3.      Would not be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property; and

 

4.      Would not conform with the general plans for the physical development of the Town as embodied in the Land Use Management Ordinance and in the Comprehensive Plan.

 

BE IT FURTHER RESOLVED that the Town Council hereby denies the application for a Special Use Permit for in accordance with the plans listed above and with the conditions listed below:

 

                                    (INSERT ADDITIONAL REASONS FOR DENIAL)

 

 

BE IT FURTHER RESOLVED that the Council hereby denies the application for the UNC Faculty-Staff Recreation Association (aka The Farm) as proposed by Dixon Weinstein Associates.

 

This the 6th day of December, 2004.