AGENDA #6
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Eastwood Lake – Application for Special Use Permit
DATE: March 5, 2001
Tonight the Council continues the Public Hearing from February 19, 2001, regarding the Special Use Permit application that proposed the removal of sediment from Eastwood Lake, a 48-acre lake in the Lake Forest Neighborhood between North Lakeshore and South Lakeshore Drives. Adoption of Resolution B or C would approve the Special Use Permit application. Adoption of Resolution D would deny the request.
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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 and the Town’s review process, and offers recommendations for Council action. ¨ Attachments: Includes resolutions of approval and denial, comments on issues raised during the February 19th Public Hearing, and a copy of the Public Hearing memorandum and its related attachments. |
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PROCEDURE REGARDING CONTIGUOUS PROPERTY The Town Attorney has advised that the Council should specify what area it considers to be contiguous property for each Special Use Permit application that comes before the Council for consideration. This determination was not made prior to recessing the hearing on February 19. The hearing was continued later in the evening of February 19 and a resolution was adopted which determined that contiguous property for this application would be that land adjacent to the development. Tonight we recommend that the Council vote to reaffirm the determination from February 19. The attached Resolution A provides the February 19 determination of adjacent land for the definition of contiguous property for this application. |
Background
On February 19, 2001, a Public Hearing was held for consideration of a Special Use Permit application to authorize removal of approximately 50,000 cubic yards of sediment from Eastwood Lake located in the Lake Forest Neighborhood. Questions were raised during the Public Hearing, and the Hearing is being reopened tonight to receive applicant and staff responses to these questions.
This is an application for a Special Use Permit. The Development Ordinance requires the Town Manager to conduct an evaluation of this Special Use Permit application, to present a report to the Planning Board, and to present a report and recommendation to the Town Council. We have reviewed the application and evaluated it regarding its compliance with the standards and regulations of the Town’s Development Ordinance; we have presented a report to the Planning Board; and on February 19, we submitted our report and recommendation to the Council.
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 or not 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 Development 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 presently in the record thus far, we provide the following evaluation of this application based around the four findings of facts that the Council must consider for granting a Special Use Permit.
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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: The applicant’s Statement of Justification (provided as an attachment to this memorandum) provides evidence in supportof Finding #1. We note the following key points raised by the applicant:
· “The lake provides significant water quality improvements and protection from upstream pollutants: (1) by the biological action during the water’s residence time in the lake, (2) by diluting the peak inflows of pollutants, and (3) by capturing most of the sediments being washed downstream by the fast-flowing feeder creeks during storms.”
· “Excavation of the lakebed will improve and preserve the water quality.”
· “In recent years as the water volume of the lake has been progressively reduced by sediment buildup, there have been algae blooms and substantial growth of aquatic weeds.”
· “Public safety is enhanced by the flood protective nature of the lake.”
· “The general welfare is promoted, among other ways, by the wildlife habitat of the lake and the adjacent undeveloped lands of the Association.” “…There should be minimal or no long-lasting effects on the wetlands from the proposed activities.”
Evidence in opposition:We have not been able to identify evidence presented in opposition to Finding #1 for this application raised at the Public Hearing.
We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.
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Finding #2: That the use or development complies with all required regulations and standards of this chapter, including all applicable provisions of Articles 12, 13, and 14 and with all other applicable regulations. |
We believe the evidence in the record to date can be summarized as follows:
Evidence in support: The applicant’s Statement of Justification (provided as an attachment to this memorandum) provides evidence in supportof Finding #2. We note the following key points raised by the applicant:
· “The project will be in compliance with all of the applicable regulations and standards. The site and surrounding area is zoned R-1 Single Family Residential. This is a permitted use under Article 12 as a Recreational Facility: Non-profit. Article 13 Intensity Regulations are generally not applicable since no structures are proposed. Applicable Design Standards of Article 14 will be met, as evidenced in the various documents accompanying the Land Development Permit Application.”
Evidence in opposition: We have not been able to identify evidence presented in opposition to Finding #2 for this application raised at the Public Hearing.
We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.
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Finding #3: That the use or development is 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. |
Council established properties adjacent to Eastwood Lake as contiguous at the February 19, 2001 Public Hearing. We recommend adoption of Resolution A reaffirming this determination.
We believe the evidence in the record to date can be summarized as follows:
Evidence in support: The applicant’s Statement of Justification (provided as an attachment to this memorandum) provides evidence in supportof Finding #3. We note the following key points raised by the applicant:
Evidence in opposition:We have not been able to identify evidence presented in opposition to Finding #3 for this application raised at the Public Hearing.
We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.
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Finding #4: That the use or development conforms with the general plans for the physical development of the Town as embodied in this chapter and in the Comprehensive Plan. |
We believe the evidence in the record to date can be summarized as follows:
Evidence in support: The applicant’s Statement of Justification (provided as an attachment to this memorandum) provides evidence in supportof Finding #4. We note the following key points were raised by the applicant:
· “The lake restoration directly or indirectly supports three of the major themes of the Comprehensive Plan:”
§ Conserve and protect existing neighborhoods
§ Conserve and protect the natural settings of Chapel Hill.
§ Provide quality community facilities and services.
· “Approval of the project will be consistent with policy objectives in the Comprehensive Plan, notably:
· Town policies should strive to maintain and enhance the character of these established neighborhoods. (8.2).
§ The Town should actively promote the enhancement and restoration of woodlands, wetlands, stream corridors, and other natural habitat areas within Chapel Hill. (9D-1).”
Evidence in opposition:We have not been able to identify evidence presented in opposition to Finding #4 for this application raised at the Public Hearing.
We anticipate that further evidence may be presented for the Council’s consideration as part of the continued Public Hearing process.
KEY ISSUES
We believe that the key issues brought forth during the February 19, 2001 Public Hearing were related to the Construction Traffic Management Plan and Hauling Route Plan, noise levels of the excavation machinery/transfer trucks during construction hours, and protection of a large White Oak tree near the dam/beach area. We have provided a list of individual questions/issues raised during the Hearing, followed by response from the town staff, as an attachment to this memorandum.
Recommendations are summarized below. Please see the attached summaries of board actions and recommendations.
Planning Board Recommendation: The Planning Board reviewed this application on February 6, 2001, and voted 8-0 to recommend that the Council approve the application with adoption of Resolution C. There were no significant issues raised at the meeting. Please see the attached Summary of Planning Board Action.
Resolution C differs from Resolution B, the Manager’s revised resolution, with one stipulation. Additional tree protection language for a large white oak tree has been added to Resolution B, the Manager’s revised resolution, that was not addressed at the Planning Board meeting.
Transportation Board Recommendation: The Transportation Board reviewed this application on February 6, 2001, and voted 5-1 to recommend that the Council approve the application with the adoption of Resolution C. Please see the attached Summary of Transportation Board Action.
The Transportation Board had the following recommendations regarding routing:
· The route taken by trucks should preferably avoid passing by elementary or middle schools.
· Most of the work should be undertaken during periods when school is not in session.
· Town staff should consider the potential damage to roads in determining appropriate routes.
· If routes are chosen that would impact schools, there should be consultation with school administration.
Staff Comment: We note the routing concern of the Transportation Board, however, the routing cannot be determined until a destination(s) has been confirmed. Resolutions A and B include a stipulation that the Town Manager approve a routing plan and that the plan address vehicle weight limits, hours of travel, responsibility for damage to public roads, and material leakage and deposit of sediment on roadways. As part of the plan approval, we will notify the school administration of the truck routing plan.
Community Design Commission Recommendation: The Community Design Commission reviewed this application on February 7, 2001 and voted 8-0 to recommend that the Council approve the application without reference to a specific Resolution. Please see the attached Summary of Community Design Commission Action.
The Commission recommended the Council approve this application for a Special Use Permit with the condition that the following six (6) concerns identified at Concept Plan Review be addressed:
1. The Commission supported a thorough review of this project by the Army Corps of Engineers and the Town Stormwater Engineer.
2. One Commission member expressed concern regarding damage to the wetlands on the site during construction.
3. The Commission expressed concern regarding the upstream impact that this project would have on Booker Creek and Cedar Fork Creek.
4. Several Commission members noted concern regarding the maintenance of the proposed forebays.
5. One Commission member expressed concern regarding trucks hauling “muck” away from the site, which would drip and leave dirt on the neighboring roads.
6. The Commission supported better detention of sediments upstream, as part of future development projects in this basin.
Staff Comment: We believe both Resolution A and Resolution B address concerns 1-5. Concern #6 cannot be addressed as part of this Special Use Permit application.
Bicycle and Pedestrian Advisory Board Recommendation: The Bicycle and Pedestrian Advisory Board reviewed this application on February 13, 2001 and voted 5-0 to recommend that the Council approve the application. There were no significant issues raised at the meeting. Please see the attached Summary of Bicycle and Pedestrian Advisory Board Action.
Manager’s Revised Recommendation: Based on the information in the record to date, we believe that the Council could make the four findings required to approve the Special Use Permit application.
We recommend that the Council adopt Resolution B, approving the application with conditions. The Manager’s recommendation has been revised to include a new stipulation regarding the method of protection for a large white oak tree near the southern access road to the lake.
Resolution C would approve the application with conditions but does not include the condition regarding the method of protection of the oak tree.
Resolution D would deny the application.
ATTACHMENTS
1. Questions/Issues Raised during the February 19, 2001 Public Hearing (p. 8).
2. Resolution A – Definition of Contiguous Property (p.10).
3. Resolution B – Approving the Application (p.11).
4. Resolution C - Approving the Application (p. 15).
5. Resolution D – Denying the Application (p. 16).
6. Bicycle and Pedestrian Advisory Board Summary of Action (p. 17).
7. February 19, 2001 Public Hearing Memorandum and Related Attachments (begin new page 1).
ATTACHMENT 1
EASTWOOD LAKE PROJECT
Questions/Issues Raised at the February 19, 2001 Public Hearing
The following issues were raised at the February 19, 2001 Public Hearing on the proposed Eastwood Lake Project Special Use Permit application.
1. A Council member asked that schools be involved as part of the review discussions for the routing of trucks.
Staff Comment: The Transportation Board recommended that consultation involving those schools affected by the truck routes should be undertaken with the school administration. Furthermore, the Transportation Board recommended that the majority of the work be undertaken during periods when school is not in session.
We note the routing concern of the Transportation Board, however, the routing cannot be determined until a destination(s) has been confirmed. In addition, routing opportunities are likely to be limited given the location of the excavation activity. Resolution A includes a stipulation that the Town Manager approve a routing plan and that the plan address vehicle weight limits, hours of travel, responsibility for damage to public roads, and material leakage and deposit of sediment on roadways. As part of the plan approval, we will communicate with school administration about the truck routing plan.
NOISE ORDINANCE ISSUE
2. A Council member expressed concern about a potential conflict with the draft Noise Ordinance. If adverse weather conditions were to delay the Eastwood Lake project, a longer working day may be attempted which could create noise beyond the designated time in the Noise Ordinance. Also a question was raised about the effective date of the new noise regulations.
Staff Comment: The proposed Noise Ordinance, as of this date, is not different than the current ordinance for construction operations. Construction operations can occur between 7:00 a.m. and 9:00 p.m. on weekdays and between 8:00 a.m. and 9:00 p.m. on weekends. Typically only emergency repairs to utilities and sanitation service may occur outside those hours. A Public Hearing has been called for April 18 to consider a draft Noise Ordinance. The Town Council would establish an effective date for the new ordinance.
LANDSCAPE PROTECTION
3. A Council member suggested that more be done to protect a large White Oak tree that would be near one of the construction access roads on the Lake Forest Association property at the south Eastwood Lake beach access.
Staff Comment: The applicant has proposed to install a layer of crushed stone around the White Oak to help cushion the impact of construction vehicles as they drive near the tree. A Council member described another technique being used in some locations by the University, involving installation of fabric at ground level near trees, covered by six inches of bark mulch, and pallets on top for vehicles to drive over.
We believe that the applicant’s proposal to install a layer of crushed stone would provide some protective cushioning for the outer roots of the White Oak. This treatment is reasonable considering the distance of the access route from the tree, and would provide more protection than driving directly over the tree’s roots. The Council member’s suggested method would provide more protection. It is a more expensive technique, and may not be warranted in all tree protection situations.
We believe that this added measure of protection is reasonable in this circumstance and would help assure that damage to this tree will be minimized during construction. We have revised our recommendation to call for a fabric, bark, and pallet approach for protection of the White Oak tree. Resolution A, the Manager’s revised resolution includes this stipulation.
ATTACHMENT 2
RESOLUTION A
(Defining Contiguous Property)
A RESOLUTION DETERMINING CONTIGUOUS PROPERTY WITH RESPECT TO THE SPECIAL USE PERMIT APPLICATION FOR EASTWOOD LAKE PROJECT (2001-03-05/R-10)
BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council, having considered the evidence submitted in the Public Hearing thus far pertaining to the application for Special Use Permit for the Eastwood Lake Project, hereby determines, for purposes of Development Ordinance Section 18.3, Finding of Fact c) contiguous property to the site of the development proposed by this Special Use Permit application to be that property described as follows:
All properties adjacent to the site.
This the 5th day March, 2001.
ATTACHMENT 3
(Manager’s Revised Recommendation)
A RESOLUTION APPROVING AN APPLICATION FOR A SPECIAL USE PERMIT FOR THE EASTWOOD LAKE PROJECT (2001-03-05/R-11a)
BE IT RESOLVED by the Council of the Town of Chapel Hill that it finds that the Special Use Permit application proposed by Lake Forest Association, Inc. on properties identified as Chapel Hill Township, part of Tax Maps 28, 40, 41A, 42 and 43 if developed according to the site plan prepared on January 24, 2001, and conditions listed below, would:
1. Be located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;
2. Comply with all required regulations and standards of the Development Ordinance, including all applicable provisions of Articles 12, 13, and 14, and with all other applicable regulations;
3. Be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property; and
4. Conform with the general plans for the physical development of the Town as embodied in the Development Ordinance and in the Comprehensive Plan.
BE IT FURTHER RESOLVED that the Town Council hereby approves the application for a Special Use Permit for Eastwood Lake in accordance with the plans listed above and with the conditions listed below:
Stipulations Specific to the Development
1. That construction begin by March 5, 2003 (two years from the date of Council approval) and be completed by March 5, 2004 (three years from the date of Council approval).
2. Land Use: This Special Use Permit authorizes:
Ř The restoration of the lake for stormwater retention, recreational purposes and wildlife enhancement; and
Ř Periodic future maintenance including sediment removal, shoreline stabilization, vegetative control and dam maintenance/management.
Permitted land disturbance, construction and maintenance activities include:
3. Special Use Permit Boundary: That the Special Use Permit boundary for this project is established as shown on the submitted Site Plan dated January 24, 2001.
4. Land Disturbance on Private Lakefront Properties: That prior to the Lake Forest Association’s beginning any land disturbance on private lakefront properties, other than properties owned by Lake Forest Association, Inc., said lakefront property owner(s) shall provide authorization (signature) for such land disturbance. This authorization shall be submitted to the Town Manager prior to beginning any site work on such properties.
Stipulations Related to Access and Circulation
5. Access/Haul Road Easements: That an access easement for Access Road #2 shall be recorded with the Orange County Register of Deeds prior to issuance of a Zoning Compliance Permit.
6. Construction Traffic Management Plan: That a Construction Traffic Management Plan, including an approved Hauling Route Plan for travel on public streets within the Town of Chapel Hill, shall be reviewed and approved by the Town Manager prior to the issuance of a Zoning Compliance Permit. The plan shall address vehicle weight limits, hours of travel, and responsibility for damage to public roads, and material leakage and deposit of sediment on roadways.
Stipulations Related to Resource Conservation District
7. Cut and Fill in the Resource Conservation District: That cut and fill calculations, for land disturbance activities outside the edge of the lakeshore line shall be provided with the submission of the Final Plan application.
8. No Rise Certification: That prior to beginning any land disturbing activities, a registered engineer must submit a no rise Certification, for review and approval by the Town Manager, stating that this project will not cause a rise to the 100-year regulatory base flood elevation, including a description of the project with supporting documentation for the no rise certification.
Stipulations Related to Tree Protection Fencing
9. Tree Protection Fence: That tree protection fencing shall be required in the following locations:
Ř Along the construction limits lines adjacent to Access Roads #1 and #2 and the southern forebay; and
Ř Along Access Road #3 at tree locations; and
Ř Around critical root zones of significant trees near the shoreline.
The location of tree protection fencing shall be approved by the Town Manager.
10. White Oak Tree Protection Measures: That additional measures shall be taken to protect the large white oak tree located near the southern access road from the impact of construction vehicles during the work necessary to carry out this Special Use Permit as they drive near the tree. These measures, to be approved by the Town Manager, shall include installation of fabric at ground level near the tree, covered by six inches of bark mulch, and pallets on top for vehicles to drive over.
Stipulations Related to State and Federal Approvals
11. State or Federal Approvals: That any required State or federal permits or encroachment agreements for development in the wetlands be approved by the appropriate agencies and copies of the approved permits and agreements be submitted to the Town Manager prior to the issuance of a Zoning Compliance Permit.
Miscellaneous Stipulations
12. Dam Inspection: That prior to final re-filling of the lake, a dam inspection report from a registered engineer shall be submitted to the Town Manager.
13. Detailed Plans: That final detailed site 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.
14. 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 Orange County Erosion Control Officer and the Town Manager prior to issuance of a Zoning Compliance Permit.
15. Silt Control: That the applicant take appropriate measures to prevent and remove the deposit of wet or dry silt on adjacent paved roadways.
16. Construction Sign Required: That the applicant post a construction sign that lists the property owner’s representative, with a telephone number, the contractor’s representative, with a phone number; and a telephone number for regulatory information at the time of issuance of a Zoning Compliance Permit.
17. Continued Validity: That continued validity and effectiveness of this approval is expressly conditioned on the continued compliance with the plans and conditions listed above.
18. Non-severability: That if any of the above conditions is held to be invalid, approval in its entirety shall be void.
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby approves the application for a Special Use Permit for Eastwood Lake Project.
This the 5th day of March, 2001.
Amended March 6, 2001.
ATTACHMENT 4
(Planning Board and Transportation Board Recommendation)
A RESOLUTION APPROVING AN APPLICATION FOR A SPECIAL USE PERMIT FOR THE EASTWOOD LAKE PROJECT (2001-03-05/R-11b)
BE IT RESOLVED by the Council of the Town of Chapel Hill that it finds that the Special Use Permit application proposed by Lake Forest Association, Inc. on properties identified as Chapel Hill Township, part of Tax Maps 28, 40, 41A, 42 and 43 if developed according to the site plan prepared on January 24, 2001, and conditions listed below, would:
1. Be located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;
2. Comply with all required regulations and standards of the Development Ordinance, including all applicable provisions of Articles 12, 13, and 14, and with all other applicable regulations;
3. Be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property; and
4. Conform with the general plans for the physical development of the Town as embodied in the Development Ordinance and in the Comprehensive Plan.
BE IT FURTHER RESOLVED that the Town Council hereby approves the application for a Special Use Permit for Eastwood Lake in accordance with the plans listed above and with the conditions listed below:
1. Resolution A: That all of the stipulations in Resolution A shall apply to the proposed development, unless modified or superseded by those stipulations below.
2. White Oak Tree Protection Measures: That stipulation # 10 be deleted.
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby approves the application for a Special Use Permit for Eastwood Lake Project.
This the 5th day of March, 2001.
ATTACHMENT 5
(Resolution of Denial)
A RESOLUTION DENYING AN APPLICATION FOR A SPECIAL USE PERMIT FOR EASTWOOD LAKE (File Number 28) (2001-03-05/R-11c)
BE IT RESOLVED by the Council of Chapel Hill that it finds that the Special Use Permit application, proposed by Lake Forest Association, Inc. on properties identified as Chapel Hill Township, part of Tax Maps 28, 40, 41A, 42 and 43 if developed according to the site plan dated January 24, 2001 and the conditions listed below, would not:
1. Be located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;
2. Comply with all required regulations and standards of the Development Ordinance, including all applicable provisions of Articles 12, 13, and 14, and with all other applicable regulations;
3. Be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property, and
4. Conform with the general plans for the physical development of the Town as embodied in the Development Ordinance and in the Comprehensive Plan.
BE IT FURTHER RESOLVED that the Council finds:
(INSERT REASONS FOR DENIAL)
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby denies the application for a Special Use Permit for Eastwood Lake Project.
This the 5th day of March, 2001.