AGENDA #7
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Report: Beechridge Development Special Use Permit – Request to Extend Completion Time Limit
DATE: February 12, 2001
The attached Resolution A would approve the request from Beechridge Development Company to extend the completion time limit for the Beechridge Development Special Use Permit. The Beechridge property is located on Bayberry Drive near Azalea Drive in the Morgan Creek Subdivision.
Based on our observations and understanding of the issues, we believe that the Town does not have a legal basis to withhold extension of the time limit for the Beechridge Special Use Permit.
Resolution B would deny the request for a time extension.
On September 11, 2000, the Council considered a request for an extension of the completion date for the Beechridge Development. Several questions were raised at the meeting, and the Council deferred action to allow response to a citizen petition which included concerns about the Beechridge development.
On October 11, 2000, the Council received the Town Manager's response. However, some issues remained unresolved and several residents again expressed concerns about the Beechridge development. The matter was referred back to the Manager for further information.
We continue to believe that the Council can reasonably make these three findings regarding Beechridge. Please refer to the attached January 30, 2001 memorandum from Planning Director Roger Waldon to Town Manager Cal Horton, which includes the September 11, October 11, and November 27 agenda items in addition to discussion of the background and status of the Beechridge development.
KEY ISSUES
Following the October 11 Council meeting, Town staff met with each resident who had expressed concerns about the Beechridge development. During those meetings, we specifically identified the residents’ concerns and the remedial action(s) that they were seeking. We then met with the Beechridge developer, Mr. Kevin Huggins, on two occasions to review and discuss the residents’ concerns and how they might be satisfactorily resolved.
The following summary notes the concerns that were identified by Beechridge area residents and the mitigation measures that Mr. Huggins has agreed to pursue. Please refer to the attached September 15, 2000 and January 31, 2001 letters from Mr. Huggins for further information about these matters.
Issues identified by the Franciscos (333 Bayberry Drive): The Franciscos state that the roadside ditch and shoulder around their lot was disturbed, and that the ditch needs to be reshaped and the shoulder scarified, reseeded, and otherwise stabilized.
Staff comment: Mr. Huggins has met with the Franciscos and has completed the identified work. The Franciscos have signed a release form accepting the work and relieving Mr. Huggins from further responsibility for the condition of the shoulder and ditch in question. We have received a copy of the signed release form.
Issues identified by the Smiths (328 Azalea Drive): The Smiths state that an existing drainage swale at the front of their lot needs to have silt removed and the surrounding area reshaped and stabilized. They further noted that the embankment areas adjacent to the sidewalk and downstream from the end of the curb along the new Beechridge Court need to be reshaped and stabilized.
Staff comment: Mr. Huggins has met with the Smiths and has completed the identified work. The Smiths have signed a release form accepting the work and relieving Mr. Huggins from further responsibility for the condition of the swale and embankment areas in question. We have received a copy of the signed release form.
Additionally, at Town staff’s request, Mr. Huggins has agreed to install an additional catch basin on the new Beechridge Court to better intercept stormwater runoff which could potentially impact the Smith’s property under certain conditions. The catch basin is scheduled to be installed before the end of this month, weather permitting.
Issues identified by the Trauts (400 Bayberry Drive): The Trauts state that Beechridge construction encroached on their property and damaged a tree which needs to be replaced. They are also asking that the lawn sprinkler system on the roadway shoulder adjacent to their lot be redirected so as not to water their property, and that they be reimbursed for legal fees incurred as a result of these and other issues with the Beechridge development. The Trauts also expressed concern about whether or not their sanitary sewer line was properly replaced after it was disturbed by the installation of a storm drain line from Beechridge.
Staff comment: Mr. Huggins has had the sprinkler system adjusted as requested. Mr. Huggins also has agreed to pay the Trauts $200 for a replacement tree (or to use otherwise as they wish) provided that the Trauts remove the derogatory signs posted at the front of their property and agree to sign a release form relieving him from further responsibility for the identified encroachment damages. Mr. Huggins has advised us that he will not agree to reimburse the Trauts for any legal fees they have allegedly incurred as a result of their issues with Beechridge.
We discussed the sewer replacement issue with Mr. Huggins, and were assured that the replacement was done properly and in accordance with accepted procedures for such work. Repair work such as this on private sewer lines within the public right-of-way is not inspected by either the Town or OWASA.
Additionally, at Town staff’s request, Mr. Huggins has agreed to install a storm drain inlet in the drainage ditch in front of the Trauts’ lot to mitigate the potential for standing water in the ditch during and after rainstorms. This work would occur within the State right-of-way, not on the Traut’s property, and is scheduled to be completed by the end of this month, weather permitting.
We have had no recent direct communications with the Trauts regarding these matters.
Issues identified by Dr. Henry (404 Bayberry Drive): Dr. Henry requests that consideration be given to eliminating the common recreation area platted by the Beechridge development. Dr. Henry also states that clearing of the sanitary sewer easement adjacent to his lot required him to install landscaping for privacy, and that he should be reimbursed for those landscaping expenses. He also noted that the color of a driveway replacement section installed by Beechridge does not match the existing driveway, and that the embankment in front of his lot is eroding.
Staff comment: Beechridge was approved by the Council as Planned Development-Housing. When the Special Use Permit was approved, recreation space was required in order to comply with the provisions of the Development Ordinance. As a Special Use Permit requirement, this platted recreation space cannot be removed without Modification of the existing Special Use Permit. Consideration of a Special Use Permit Modification requires action by the Town Council. During consideration of the Special Use Permit Modification application, the Council would need to make the necessary public purpose finding to modify the recreation space requirement and exempt the development from a recreation requirement.
If the recreation space requirement was modified by the Town Council, the platted recreation space could be "undedicated" by the Homeowners Association and added to existing adjacent lots, provided that the land was offered by the Homeowners Association and accepted by the adjacent property owners. Mr. Huggins has advised us that he will work with the Beechridge Homeowners Association to investigate the possibility of removing the recreation area if that is the desire of the Association.
Mr. Huggins has advised us that he will not agree to reimburse Dr. Henry for his landscaping costs to create a buffer adjacent to the sewer easement, and notes that the sewer easement in question was platted and had already been cleared prior to Dr. Henry’s purchase of the property.
We inspected Dr. Henry’s driveway and found it to be satisfactory. The color difference is a result of the newer concrete being lighter than the older concrete. We would expect this color differential to diminish with age.
Mr. Huggins has completed the identified stabilization work on the embankment at the front of Dr. Henry’s property, including erosion matting and seeding.
We also met with Dr. Kenneth Sugioka (319 Bayberry Drive) whose name was included with the petitioners at the September 11 meeting. Dr. Sugioka expressed concerns about speeding on Bayberry Drive and the need for a stop sign installation to slow traffic. We suggested that, because this area is outside of the Town Limits and involves a State roadway, he work with the Orange County Sheriff’s Department for speed enforcement, and with the State for installation of stop signs. We suggested that he bring these matters to the County Commissioners’ attention, and that they could request assistance from the State and the Sheriff’s Department on Dr. Sugioka’s behalf.
CURRENT STATUS OF MITIGATION WORK
We have inspected the work that has been completed to date, and we found it to be satisfactory. We have attempted to contact the Francisco’s, the Smith’s, and Dr. Henry about their satisfaction with the work done by the Beechridge developer to mitigate alleged property damages. The Franciscos and Smiths returned our calls and stated that they are satisfied with the work done to date and have signed the release agreements as requested by Mr. Huggins. In the case of Dr. Henry, this work only involved stabilization of the embankment at the front of his property. Mr. Huggins did not agree to reimburse Dr. Henry for buffer landscaping adjacent to the sewer easement at the rear of the Henry’s property. We have received no further communications from Dr. Henry.
Mr. and Mrs. Traut have not reached an agreement with Mr. Huggins regarding their allegations of damages. We believe that the Town does not have any further role in this matter, and we believe that it is a civil matter between two property owners.
Mr. Huggins has advised us that he has contracted to have an additional storm drain inlet installed on Beechridge Court to intercept street runoff that currently enters the drainage swale in front of the Smith’s property during heavy rainfall events. Mr. Huggins has also contracted to install an inlet in the ditch in front of the Traut’s property to collect and convey ditch flow into the underground storm drain system. We understand that these work items are scheduled to be completed by the end of February, weather permitting.
The attached letter from Mr. Huggins provides further information on the status of these issues.
We believe that the Beechridge developer has taken and is taking reasonable measures to mitigate the impacts of his development on surrounding properties.
Article 18.6.3 of the Development Ordinance sets forth the requirements for the completion time limit of Special Use Permits:
If all construction and actions authorized or required by a Special Use Permit or Modification of Special Use Permit are not completed by the completion date stipulated in the Permit or Modification, the permit holder may request an extension of the completion time limit from the Town Manager. The Town Manager may grant a single extension of the time limit for up to twelve (12) months if he determines that: a) the permit holder submitted the request within sixty (60) days of the completion date; b) the permit holder has proceeded with due diligence and good faith; and c) conditions have not changed so substantially as to warrant Council reconsideration of the approved development.
If all of the construction and actions authorized or required by a Special Use Permit or Modification of Special Use Permit are still not completed by the extended completion date granted by the Town Manager, the permit holder may, within 60 days of the revised completion date, request additional extensions of the completion time limit from the Council. The Council may grant extensions of the time limit for periods of up to twelve (12) months if it makes determinations a) ‑ c) above.
As noted above, the Town Manager has granted one twelve-month extension. This request is before the Town Council.
In order to grant the extension request, the Council must determine that:
A) The permit holder has submitted the request within 60 days of the completion date;
B) The permit holder has proceeded with due diligence and good faith; and
C) Conditions have not changed so substantially as to warrant Council reconsideration of the approved development.
Determination A: The permit holder has submitted the request within 60 days of the completion date. The request was filed August 22, 2000, which is within 60 days of June 24, 2000.
Determination B: Work on this development has been ongoing. The Phase III Zoning Compliance Permit was approved on August 1, 2000. We believe that the Council could make the finding that the applicant has proceeded with due diligence and good faith toward the completion of this project.
Determination C: The Special Use Permit was approved by the Council in 1996. At this point, evidence has been presented regarding changing conditions. We believe that the Council could make the finding that conditions have not changed so substantially as to warrant Council reconsideration of the approved development.
We believe that the Council can make the three necessary determinations and grant the extension.
Because the project did not meet its completion time limit, it is presently out of compliance with the terms of its Special Use Permit. The remedy that could be ordered is to come into compliance, which means to complete the project. Since work is ongoing, ordering such a remedy would not have meaning.
The Town Manager could choose to begin invoking a civil penalty of $25.00 per day for each day that the project remains out of compliance with the terms of its Special Use Permit. We have not done so because the developer requested extension in a timely fashion, in the manner prescribed in the Development Ordinance. We have not considered it appropriate to cite a violation while that extension request is actively pending before the Council. Once the Council takes action on the request for extension, if that action is to deny the request, we would consider pursuing the civil penalty provision.
We have previously stated our opinion to the Town Council, and continue to believe, that the Town does not have a legal basis to withhold extension of the time limit for the Beechridge Special Use Permit.
The remaining regulatory step for the developer of Beechridge (other than obtaining building permits and certificates of occupancy for completed houses) is the recording of final plats that would dedicate roads and create lots. Final plat approvals cannot be issued for a project with an expired completion time limit.
That the Council adopt Resolution A, approving the request for an extension of the completion date of the Beechridge Development.
Resolution B would deny the request for an extension.
ATTACHMENTS
1. Map (p. 9).
2. January 30, 2001 Waldon memo regarding Beechridge, with attachments (begin new page 1).
3. January 31, 2001 Huggins letter (p. 33).
4. January 12, 2001 Huggins letter (p. 34).
5. January 10, 2001 Huggins letter (p. 37).)
6. November 15, 2000 Huggins letter (p. 39).
RESOLUTION A
(Manager’s Recommendation)
A RESOLUTION APPROVING A REQUEST FOR AN EXTENSION OF THE COMPLETION DATE FOR BEECHRIDGE DEVELOPMENT (2001-02-12/R-9a)
WHEREAS, Beechridge Development Company has requested an extension of the completion time limit for Beechridge Development; and
WHEREAS, Article 18.6.3 of the Chapel Hill Development Ordinance requires Council to make the determination that a) the permit holder submits the request within 60 days of the completion time limit; b) the permit holder has proceeded with due diligence and good faith; and c) conditions have not changed so substantially as to warrant Council reconsideration of the approved development; and
WHEREAS, a) the permit holder submitted the request within 60 days of the completion date; b) the permit holder has proceeded with due diligence and good faith; and c) conditions have not changed so substantially as to warrant Council reconsideration of the approved development;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council approves the request of Beechridge Development Company for the extension of the completion date of the Beechridge Development to June 24, 2001.
This the 12th day of February, 2001.
RESOLUTION B
(Denying the Request)
A RESOLUTION DENYING A REQUEST FOR AN EXTENSION OF THE COMPLETION DATE FOR BEECHRIDGE DEVELOPMENT (2001-02-12/R-9b)
WHEREAS, Beechridge Development Company has requested an extension of the completion time limit for Beechridge Development; and
WHEREAS, Article 18.6.3 of the Chapel Hill Development Ordinance requires Council to make the determination that a) the permit holder submits the request within 60 days of the completion time limit; b) the permit holder has proceeded with due diligence and good faith; and c) conditions have not changed so substantially as to warrant Council reconsideration of the approved development; and
WHEREAS, the permit holder has not proceeded with due diligence and good faith toward the completion of this project;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council denies the request of Beechridge Development Company for the extension of the completion date of the Beechridge Development, and refers Beechridge Development Company to the Special Use Permit Modification process to reactivate the development proposal.
This the 12th day of February, 2001.