ATTACHMENT 3
Staff Comments on The Third Draft
The Third Draft of the Land Use Management Ordinance (formerly known as the Development Ordinance), dated August 23, 2002, has been written to incorporate changes as recommended by the Town Council on June 10. As Town staff members have been reviewing and evaluating this Draft, the key changes have been carefully studied as to their likely impacts. In addition, the Manager’s memorandum of June 10 described that the Third Draft would be evaluated with respect to the need for staffing resources that specific changes might generate. This paper, “Staff Comments on the Third Draft” offers this information and a set of recommendations for consideration.
Highlights of Possible Impacts
Resource Conservation District: One of the areas of most significant change in the Third Draft is a set of changes to Section 3.6.3, Resource Conservation District. A key point is that two major changes are proposed that work in tandem to produce impacts: The area covered by Resource Conservation District restrictions is proposed to be expanded, and the restrictions themselves are tightened.
The nature of the tightened restrictions includes the following:
· Variance needed from the Board of Adjustment for streets and bridges in the RCD
· Many uses no longer permitted, or permitted only in areas farthest from streams
· Tighter restrictions on Land Disturbance
Components of the expanded areas of coverage include:
· All protected stream corridors would extend 150’ from each bank of a stream. Today, protected corridors are 75’ from the bank for streams draining less than a square mile, and 100’ for most others. In some circumstances, for lots platted prior to the mid-1980s, protected areas can be as narrow as 50’ from a stream bank.
· Areas near floodplains would have the Resource Conservation District defined as 150’ from a stream bank, or any areas within 3’ vertical elevation of the 100-year floodplain elevation, whichever encompasses the greatest area (current Ordinance specifies 2’ above).
· Some drainage areas that are not now classified as Resource Conservation District may become so, because of broader definitions of streams in the Third Draft.
Areas of concern are:
1. Prohibiting streets and bridges without a variance shifts key decision-making authority for major new development from the Council to the Board of Adjustment. The Council would be unable to make its normal considerations regarding access, circulation, traffic, and connectivity issues.
We recommend that the Council continue to be able to permit streets and bridges within the Resource Conservation District.
2. Land disturbance limitations could preclude the location of desirable and necessary facilities, such as greenways and sewer lines, within the Resource Conservation District. While it is desirable to not have sewer lines adjacent to streams, it is sometimes unavoidable to have sewer lines in the lowest-lying areas, near streams.
We recommend exempting greenways and public utilities from the land disturbance limitations within the Resource Conservation District.
3. Raising the Resource Conservation District Elevation from 2’ above the 100-year flood elevation to 3’ above may be desirable because we know that Chapel Hill’s floodplain maps are old, need to be updated, and almost assuredly do not accurately reflect what would be the boundaries of a 100-year flood, because there has been so much development since the floodplains were mapped. This is the reason that the “2’ above” rule was established in 1986 - - to be conservative, we do not want to allow new structures to be built in areas that may become floodplain when new mapping is done. It has been 15 years since that rule was put in place, and more development has occurred. Accordingly, we believe that it would be reasonable to raise the elevation. However, we believe that this action should be considered with the understanding that, once new mapping is in place for Chapel Hill (estimated at 2-3 years), this rule could logically be replaced, because the 100-year floodplain elevations would be accurate. We think that it would be problematic to have a RCD elevation that is 3’ or even 2’ above an accurately determined floodplain elevation.
We recommend that, along with raising the RCD Elevation from 2’ to 3’ above the current 100-year floodplain elevation, the Council make a statement of intent that the RCD Elevation should be adjusted to be equal to the 100-year floodplain adjustment at the time that new floodplain maps are issued.
4. Expanding the RCD stream corridor distance to 150’ will mean that many properties in Town, including residences, that are not now within the Resource Conservation District will be within the RCD. We believe there is a large body of literature indicating that undisturbed stream buffers of at least 100’ are desirable for the purpose of protecting water quality. However, this benefit (derived from sheet flow over natural areas) does not appear to accrue to the same degree in the context of an urban area. In Chapel Hill, with over 90% of land currently developed, the difficulties imposed on property owners by increasing the corridor distance to 150’ (creating nonconformities combined with increased limitations on expansion of existing uses, prohibiting new uses) may not be offset by accompanying environmental protection. We believe that there is clear benefit in increasing all RCD corridors to 100’, expanding the RCD in places where the corridor is now 50’ or 75’, and that the problems resulting from creating a relatively large number of nonconforming uses suggest that 100’ is a reasonable limit.
We recommend that all RCD stream corridors be established as the area within 100’ of any perennial or intermittent stream.
5. Expanding the RCD area may result in less flexibility in site designs, which could have a limiting affect on efforts to preserve stands of trees. There may be circumstances where the expanded RCD area on a property means that the only locations for buildings on that property might be in an area where tree protection would be desirable. We note this potential conflict of policy objectives, and believe that it would be desirable to have flexibility in cases where it can be demonstrated that allowing development within upland zones of the RCD might result in preservation of significant tree stands in non-RCD areas of a development site. We believe that the additional flexibility that would be available to the Council under the Third Draft, ability to modify regulations for a particular site in the context of a Special Use Permit application if public purposes can be demonstrated, could prove to be valuable in such a circumstance.
Impervious Surface Restrictions: Currently the southern half of Chapel Hill falls within a Watershed Protection District, as mandated by State law. Our watershed regulations, including limits on impervious surface, reflect State requirements and definitions. The Council has directed that these impervious surface restrictions be extended to apply to the entire Town in the Third Draft. However, we note one feature of concern in the State-mandated regulations: the definition of impervious surface. In particular, gravel and porous pavement is considered to be impervious surface, as are areas under water (e.g., ponds). We believe that gravel surfaces are partially pervious, and we believe that there is merit in not counting ponds as impervious surface - - ponds usually enhance rather than detract from water quality initiatives. Accordingly, we believe that the Third Draft could be adjusted with respect to how impervious surface is defined in non-watershed areas.
We recommend that the Third Draft be adjusted such that in non-watershed areas, gravel surfaces and special porous pavements would count as half-impervious, and ponds would not be counted as impervious surface.
Stormwater Management: A major area of change in the Third Draft is increased standards and requirements related to Stormwater Management. There are two issues: higher standards are established (modeled after the volume, rate, and quality standards built into the Office/Institutional-4 zoning district created last spring), and application of the standards extended to single-family and two-family lots where 5,000 square feet or more of land would be disturbed. Questions have been raised about whether the OI-4 standards, designed to be applied to a large area (UNC campus) that is mostly developed, can reasonably be met on smaller and/or undeveloped parcels. Compliance with the proposed rules would require an analysis and report from a professional engineer. The cost of such services, when applied to a relatively small lot, could be considered burdensome.
We recommend that the threshold for the proposed requirement be set at 5,000 square feet of disturbed area.
We also note that the proposed rules would increase the need for staff resources for plan review and evaluation, and for inspection of stormwater management facilities constructed on private property. It may be possible to meet some of the needs through contractual services.
We note that increased stormwater management requirements, similar to increased RCD requirements, could have a negative impact on efforts to preserve trees. The additional stormwater requirements that are proposed may result in more clearing and grading on development sites than would be the case under current stormwater management standards. As would be the case in considering possible trade-offs between tree preservation objectives and Resource Conservation District objectives, there may be circumstances where tree preservation objectives and stormwater management objectives would need to be balanced. A possible tool that could help with this potential conflict is, again, the flexibility that the new Ordinance would give to the Council in considering individual Special Use Permit applications.
Tree Ordinance: The Council’s June 10 direction called for expanding certain tree protection regulations to single-family and two-family lots. The Third Draft proposes that a tree survey, landscape protection plan, and landscape protection fencing be required for any single-family or two-family lot where a building permit is being sought and land disturbance would exceed 2,000 square feet. We understand the desirability of preserving existing vegetation. However, we believe that the 2,000 square foot threshold may be too low, requiring almost home construction project to hire design professionals to prepare a tree survey. We believe there is merit in establishing a threshold to trigger tree protection that is identical to a similar trigger that requires stormwater management plans and facilities. Accordingly, we believe that a 5,000 square foot threshold would be a reasonable mechanism to address the Council’s interest in protecting trees on private lots, while balancing practicality and private property interests, and recommend consideration of that adjustment. We do note that this change will generate a new level of demand for staff services. We believe the increased demands for information, assistance, reviewing plans, and site inspections could not be handled with current resources.
If this provision is included in a new Land Use Management Ordinance, we believe that additional resources will be needed to assist the Urban Forester in the Public Works Department. It may be possible to meet some of these needs through contractual services.
Increased Requirements for Single-Family, Two-Family Construction: A key shift in the Third Draft is application of restrictions and requirements to the development of single-family and two-family dwellings. Presently, a builder of a single-family home or duplex may obtain a building permit from the Building Inspections Department by meeting Building Code, setback requirements, height limits, parking regulations, and Resource Conservation District provisions. Under provisions in the Third Draft, the builder of a single-family home likely would need to submit a Landscape Protection Plan, a Stormwater Management Plan, and demonstration that the following requirements are met: setbacks, height limits, floor area ratios, parking requirements, impervious surface requirements, and stormwater management standards. We believe that additional resources will be needed to meet new service demands of owners and builders for information about requirements and plan review.
If these provisions are included in a new Land Use Management Ordinance, we recommend that steps be taken to add resources to work with builders/owners, evaluate submitted plans, and issue Zoning Compliance Permits prior to issuance of Building Permits for construction of single-family and two-family dwellings.
Parks and Recreation Adjustments: There were several suggested changes to the Second Draft that were prepared by our Parks and Recreation Department that were not incorporated into the June 10 material that was before the Council when the Council gave its direction for the Third Draft. Some changes to Parks and Open space regulations were made, as described in the attached paper, “Highlighted Changes in the Third Draft.” We believe that the Third Draft could be further improved by incorporating these additional suggestions:
We recommend making adjustments to the Parks and Open Space regulations to reflect clarifying suggestions offered by the Parks and Recreation Department.
Signs: The need for an adjustment in sign regulations has recently come to our attention. The current Development Ordinance, and the Third Draft, both identify particular types of signs that are exempt from regulation (Section 14.13.4 in the current Ordinance, Section 5.14.3 in the Third Draft). One of these exemptions reads as follows, with our proposed addition shown in bold-underline:
Signs in the Town Center-1 and -2 districts which have no more than two display surfaces, and are no more than six (6) square feet in area per display surface. This provision applies only to changeable or moveable signs which are limited to one (1) per business and located on or in front of the business. Changeable or moveable signs are those non-illuminated signs that change or are moved on a daily basis.
Our reason for suggesting this change is a recent pattern downtown of businesses placing such exempt signage in an off-site or remote location, in a manner that we believe is not consistent with the intent of this exemption. Another reason is to clarify the nature of this exemption, so as to more clearly pursue enforcement of sign regulations.
We recommend that sign regulations be adjusted to clarify that the downtown exemption on small and moveable signs applies only if such sign is located on or in front of the business being advertised.
Appeals: There has been an increasing trend in Chapel Hill for citizens and property owners to appeal opinions of Town staff to the Board of Adjustment. We believe that this is a distortion of the intent and objectives of appeal procedures, which we believe are intended to provide a venue for appeal of an approval or denial of an application. We do not believe that it is reasonable to provide a formal process for the appeal of an opinion about what actions might be taken in the future. The current Development Ordinance has the following language, which is reflected in the Third Draft: “Any decision of the Town Manager made in the administration of the provisions of this chapter may be appealed to the Board of Adjustment by any person aggrieved by such decision.”
We recommend that clarification be added to the Third Draft regarding appeals of a Town Manager decision to clarify that the appeals process applies to cases where the Town Manager has made a final decision on an application - - approve, deny, or approve with conditions - - and not to appeals of opinions.
We note that additional staff work is underway on descriptions of alternate levels of stormwater management regulation. We expect to present information at the September 18 Public Hearing.