AGENDA #13

 

MEMORANDUM

 

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

 

SUBJECT:       Response to Petition on Development in Northside

 

DATE:             June 24, 2002

 

 

This memorandum responds to a petition presented at the May 13, 2002 Town Council meeting by Ms. Estelle Mabry and Mr. R. D. Smith regarding several buildings in the Northside neighborhood.  The petitioners stated that the buildings should not have been permitted and that the structures are not consistent with preservation of Northside as a family neighborhood. 

 

DISCUSSION

 

Review of these structures has raised a number of issues: 

1. Do the buildings meet zoning regulations?  How can we best assure that structures meet all requirements prior to occupancy?
2.  How should we enforce the restrictions on the numbers of unrelated individuals in a single unit and single building?
3. What should be done with the structure at 308 McMasters Street?
4. How can Town ordinances better promote neighborhood conservation?

 

1.      Zoning regulations

We reviewed each building mentioned in the petition, and include information sheets for each one.  Each sheet includes data on the zoning district and the permitted and actual lot sizes, building heights, building setbacks and numbers of bedrooms.

 

Two items to keep in mind when reviewing this material:

 

1. Most of the existing lot sizes are shown as net land area (the actual size of the lot), but three are given as gross land area.  The Development Ordinance specifies minimum lot sizes in terms of gross land area.  The Ordinance allows a property to count portions of adjacent right-of-way for this calculation, limited to 10% of the actual size of the lot.
2. An amendment to the Development Ordinance in 1986 increased the minimum lot size required for a duplex, but exempted lots established prior to January 1986 from this increased requirement. 

 

The petitioners mentioned specifically 15 structures. We did not find any files on two structures.  Of the remaining 13, there are three buildings which do not meet the dimensional requirements of the Development Ordinance and one which encroaches into an OWASA easement. 

 

• The duplex at 406 A and B McMasters Street has a sideyard setback of 7.5’ when it should be 8’, and has a solar setback of 7.3’ when it should be 11’.  The owner may request a variance for both of these, but it is unlikely that the physical situation would change.  We believe that this situation happened because the solar setback was not being routinely checked before a building permit was issued in August 1998, and because the as-built drawing that demonstrated the 6” error in the sideyard setback was not carefully reviewed in August 2001.

 

• The single family house at 408 McMasters Street encroaches up to about 2.4’ into OWASA’s utility easement.  OWASA staff have been notified. We believe that the as-built drawing was not reviewed carefully enough before the certificate of occupancy was issued in August 2001.

 

• The duplex at 308A and B does not meet minimum street and sideyard setback requirements now.  After the building permit was issued and construction underway, the neighboring property owner surveyed his own lot and claimed that the structure at 308 did not meet sideyard setback requirements.  The owner of 308 did not prove otherwise to the Town, but requested a variance from the Board of Adjustment.  The variance was not granted.  The drawing filed with the application for a building permit in 1990 showed both the sideward and frontyard setback as meeting the requirements.

 

• The single family house at 621 Sykes Street has an irregularly shaped lot, and one corner of the building encroaches about 2.4 inches into the front setback.  Again, the as-built drawing showed the encroachment, but no action was taken before issuance of the certificate of occupancy in August 2001.

 

Finding these dimensional problems has resulted in our reviewing and modifying the procedures within the Inspections Department.  We believe that the additional checks of building permit applications and as-built drawings, as well as more careful training of staff, will help to avoid the issuance of building permits and certificates of occupancy to buildings which do not meet all requirements.  In addition, we are considering whether to require additional surveying of the footings or foundations when the permit application shows the setbacks being very close to the minimum allowed.

 

2.      Restrictions on Numbers of Unrelated Individuals

On June 10, we reported to you that we had discovered a discrepancy in interpretation and enforcement of sections of the Development Ordinance.  (Please see the copy of the memorandum attached.)  In summary, we had been enforcing a limit of four unrelated people per dwelling unit of a duplex since the Council adopted a restriction in 1990.  However, a very careful study of the ordinance resulted in the conclusion that, in most cases, the limitation is four unrelated people per two-family duplex building.  Because the implications of the amendment in 1990 are not simple, it is necessary to summarize the restrictions on the numbers of unrelated individuals in a matrix.  It is attached to the June 10, 1990 memorandum.

 

In most cases of zoning violations, we give 30 days to come into compliance.  The owner of the violation also has 30 days in which to appeal the decision of the enforcement officer.  However, we believe that it would be unreasonable for several reasons to attempt to require compliance with the restrictions on unrelated individuals in such a short period, particularly after we have been explicitly enforcing a limit of four unrelated people per dwelling unit. 

 

First, it would be a hardship for the tenants to find alternative housing so quickly, especially when other rental units are also receiving similar notices.  Second, it might be very difficult for the owners of rental housing whose finances had been based on the expectation of rent from four tenants per unit, to so quickly absorb a lower rent.  (It would certainly be possible for the units to be rented to families of three or more people, but generally families who rent housing cannot pay as much rent as can four unrelated individuals.)  Finally, our attorney advises that causing a landlord to evict tenants while there is a lease in effect could result in court action against the Town under difficult factual circumstances and would not be in the Town’s best interests. 

 

Therefore, we are notifying owners of buildings not in compliance with these restrictions, but having no more than four tenants per dwelling unit, that they have either one year from notice or until the end of the current lease, whichever is sooner, to come into compliance. 

 

We can and will pursue issues related to noise, trash and unlawful parking, no matter what the occupancy situation.

 

3.         308A and B McMasters Street

The duplex at 308 A and B McMasters Street is still under construction.  Although the permit was issued in 1990, the owner has met the statutory requirements of working often enough to keep the permit active. The owner of this property faces several obstacles in seeking a certificate of occupancy.  The structure does not meet setback requirements, and requests for variances from required setbacks have been denied by the Board of Adjustment.

 

Neighbors have reported that people have been occupying the building even though there are no utilities. 

 

Town inspectors report that the structure does not meet all State Building Code requirements.  The Town Attorney advises that condemnation of the building as unfit for habitation is not an option now, while there is still a valid and active building permit. 

 

We recommend that the Town consider making an offer to purchase the property, which we understand may be on the market.  If the Council so authorizes, we would commission a market appraisal as the first steps of an acquisition process that could lead to demolition of the structure and use of the lot for an affordable housing unit.

 

4.         Neighborhood Conservation

We understand the petitioners’ concern for preserving the character of the Northside neighborhood.  That concern has been passed on, in general and in specifics, to the consultant who is also preparing the Third Draft of the Development Ordinance.  The consultant has under consideration specifics such as:

·        not allowing the expansion of single family houses into duplexes,

·        applying floor area ratios to residential development,

·        restricting front yard parking outside the Historic Districts,

·        revising the setback and buffering requirements, and

·        the use of a Neighborhood Conservation District. 

This draft is scheduled to be presented to the Town advisory boards and commissions in August and September, with a public hearing scheduled for September 18.

 

CONCLUSION

 

This petition has raised several important issues and has prompted us to review and improve our enforcement procedures.  It also emphasizes the importance and difficulty of trying to preserve the character of the Town’s older neighborhoods.  We anticipate more substantive discussion of such preservation with the next draft of the new Development Ordinance.

 

RECOMMENDATION

 

That the Council authorize the Town Manager to begin a process of acquiring the lot at 308 McMasters Street for use as affordable housing, and to commission an appraisal of its market price.

 

ATTACHMENTS

 

1.   212 A & B Carver Street (p. 6).

3.      104 A and B Carver Street (p. 7).

4.      407 A & B Lindsay Street (p. 8).

5.      321 McDade Street (p. 9).

6.      309 McDade Street (p. 10).

7.      403 McDade Street (p. 11).

8.      308 McMasters Street (p. 12).

9.      400 A & B McMasters Street (p. 13).

10.  402 A & B McMasters Street (p. 14).

11.  404 A & B McMasters Street (p. 15).

12.  406 A & B McMasters Street (p. 16).

13.  408 McMasters Street (p. 17).

14.  211 Mitchell Lane (p. 18).

15.  617 A & B Sykes Street (p. 19).

16. 621 Sykes Street (p. 20).

 

A RESOLUTION AUTHORIZING THE BEGINNING OF A PROCESS TO ACQUIRE 308 A AND B MCMASTERS STREET (2002-06-24/R-24)

 

WHEREAS, the structure at 308 McMasters Street has been under construction since October 1990; and

 

WHEREAS, the owner of said structure has worked on it often enough to keep the building permit active but not enough to complete the structure; and

 

WHEREAS, the neighbors of 308A and B consider the building under construction at 308 McMasters Street to be a nuisance and a blight on the neighborhood; and

 

WHEREAS, the structure does not meet the setback requirements of the Development Ordinance and has had two requests for a variance from these requirements denied by the Board of Adjustment;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Town Manager is authorized to begin a process for the Town to acquire the real estate, including opening discussions with the owner and commissioning an appraisal of its market value.

 

This is the 24^th day of June, 2002.