AGENDA #5c
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Early Council Review of Development Projects
DATE: February 14, 2000
This report responds to a question raised by a Council member, following the January 10 Council decision on the Airport Road BP Gas Station SUP modification, regarding the possibility of providing an opportunity for Council review and comment earlier in the development process.
On January 10, 2000, the Council denied a request for modification of the Special Use Permit for the Airport Road BP Gas Station. The requested modification would have allowed a revised site plan and redevelopment of the gas station site to include a new convenience store.
As part of the Special Use Permit Modification the BP applicant was requesting, pursuant to the provisions of Sec. 18.7.1 of the Development Ordinance, modifications of certain otherwise applicable design standards. These modifications were necessary in order for the proposed redevelopment to be situated on this particular site.
Sec. 18.7.1 allows the Council to “make specific modifications of the regulations” in the process of approving a special use permit modification where the Council finds that “public purposes are satisfied to an equivalent or greater degree.” (The complete text of this Ordinance is attached.)
Following the Council’s vote to deny the modifications of regulations and modification of the Special Use Permit, a Council member asked whether it would be possible to revise procedures to allow an applicant an opportunity to solicit the Council’s views prior to initiating, or earlier in, the special use permit application process.
Present Ordinance procedures provide for the Council to consider a development application following staff review and consideration by Town advisory boards. There are a number of different types of development proposals that come before the Council:
Some development proposals involve legislative decisions, most notably applications for rezoning. The Council has broad discretion in making legislative decisions and can consider matters brought to its attention outside of any public hearing.
Others, most notably individual special use permit applications, are subject to a procedure that is quasi-judicial in nature, involving the Council serving as a fact-finding body and making its decisions based on sworn testimony presented at a more formal hearing where the opportunity for cross-examination is allowed. In these cases, matters raised outside the public hearing should not be considered.
Still other development proposals include a combination of both a legislative and a quasi-judicial decision. The clearest example of this is a proposal for rezoning to a conditional use zoning district accompanied by an application for a special use permit. In addition, the specific case which prompted this inquiry is a type of combination application. The applicant is seeking a special use permit, which requires a quasi-judicial proceeding. However, the part of the decision allowing the Council to modify the otherwise applicable regulations gives the Council greater discretion and most resembles a legislative type decision with its accompanying discretion.
Please see the attached materials for a discussion on the distinctions between these various types of decisions and the proper procedures for each.
As indicated in these materials, because of the quasi-judicial nature of the special use permit application process, it is not appropriate to have direct communication with Council members on a pending special use permit proposal. There are some limited exceptions to this general rule:
1. Prior to an application for a special use permit being filed, an applicant could seek guidance from Council members. Two recent matters before the Council, the proposed modifications to University Mall and the VilCom special use permit application, are examples of this.
Where such informal feedback is solicited on a future application which is quasi-judicial in nature, it is important that a Council member not make any formal commitment or establish a fixed position on the application. As the attached materials indicate, in quasi-judicial cases Council members must remain open to weighing the evidence properly presented through the public hearing process and base their decisions solely on that evidence. Informal feedback through such a process, however, prior to an application being filed might be helpful to an applicant in determining how to design his proposal.
2. When a special use permit (requiring Council quasi-judicial review) is accompanied by a rezoning application there is more of an opportunity for Council feedback, but this feedback should be limited to the rezoning application and should not address the adjoining special use permit. Rezoning is a legislative function and the Council has greater flexibility in what it considers and how it receives information in such cases. However, as indicated in the attached excerpt from the Owens book, the line between the two parts of this type application can be “blurred” and Council members proposing to offer feedback to an applicant should still make it clear that they are not making any commitments with respect to their positions on the upcoming application.
3. The specific case which prompted the request for this report involved a third minor exception to the general rule. The BP case involved a special use permit with an additional finding needed by the Council in order for the Council to grant, as part of the permit, certain exceptions to otherwise applicable design standards. As Sec. 18.7.1 is worded, even if the Council were to make such a finding, the ordinance allows, but does not require, the Council to grant an exception to the design or development standards.
In such a case, it would appear that there would be an opportunity for an applicant to converse with Council members early and outside of the formal hearing process, so long as the subject matter of the conversation were limited to the merits of the exemptions sought (i.e., whether “public purposes would be satisfied” if the exemption were granted and whether the exceptions to standards should be allowed) and did not address the underlying SUP modification. Again, Council members proposing to offer feedback to an applicant should still make it clear that they are not making any commitments with respect to their positions on the upcoming special use permit applications.
4. Applicants can generally learn the Council’s basic views as to certain matters (such as the Council’s interest in seeing an affordable housing component of residential development) by following the Council’s consideration of recent proposals, reviewing policy documents contained in the Comprehensive Plan, and from other sources, including conferring with staff.
There presently exist opportunities for applicants, outside the formal application process, to receive input from Council members on proposed development projects. In fact, a number of persons who have shepherded applications through the Town’s development process already find ways to do this, including some of the examples mentioned above.
If Council believes that the Development Ordinance should be changed in order to establish a more formal way for the Council as a body to have an earlier opportunity to comment on proposals, perhaps similar to the way the Design Review Commission currently conducts courtesy review, it would be necessary to schedule a public hearing and refer this matter to the staff with a request that a proposed text amendment be developed.
Any such ordinance would need to be drafted so as not to create a procedure in which the Council is in effect rendering an advisory opinion on quasi-judicial applications or establishing a fixed position on an application in advance of the full quasi-judicial process where evidence is presented at a public hearing.
ATTACHMENTS
1. Copy of Popular Government
Article, “Zoning Hearings: Knowing Which Rules to Apply,” by David W. Owens
(1993, Institute of Government) (p. 5)
2. Excerpt (p. 10), Conflicts of Interest in Land-Use Management Decisions, by Owens (1990, Institute of Government) (p. 15)
3. Excerpt (p. 32), Introduction to Zoning, by Owens (1995, Institute of Government) (p. 16)
4. Section 18.7.1, Chapel Hill Development Ordinance (p. 17)