AGENDA #8

 

MEMORANDUM

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

 

SUBJECT:       Discussion and Recommended Process Related to proposed Third Draft of new Land Use Management Ordinance

 

DATE:             October 7, 2002

 

 

 

The purpose of this memorandum is to follow-up on Council discussions of the Third Draft of a proposed new Land Use Management Ordinance.  This memorandum:

 

1.      Offers procedural recommendations, a proposed schedule and suggests that the Council:

 

·        Consider enacting new nonconforming and duplex provisions on October 21

·        Schedule a Citizen Workshop for Saturday, October 26

·        Continue the October 21 Hearing to October 28

·        Consider action on the remaining elements of the Land Use Management Ordinance on November 25

 

1.      Offers additional ideas and discussion related to key issues:

 

·        Nonconforming Status

·        Resource Conservation District

·        Duplexes

 

BACKGROUND

           

On September 18, the Town Council conducted a Public Hearing on the Third Draft of a proposed new Land Use Management Ordinance.  At the conclusion of the evening the Council recessed the hearing to October 21, and asked the Town Manager to prepare a memorandum with procedural suggestions for October 7.  A copy of the main September 18 memorandum is included in Attachment 1.

 

 

PROCEDURAL RECOMMENDATIONS

 

Partial Action on October 21

 

There is still considerable community discussion that needs to take place on the Third Draft.  However, we recommend that the Council consider taking action on October 21 on two key provisions of the proposed Ordinance:  Nonconforming Status and Duplexes. 

 

The September 18 Public Hearing was recessed until October 21, and enactment of a full new Ordinance would be possible that evening.  We do not believe that the Council or the community has completed discussion, and suggest that action on a new Ordinance not occur before November 25.  But we believe it would be useful, possible, and appropriate for the Council to enact new provisions related to nonconforming status and duplexes on October 21.  We offer discussion of nonconformities in this memorandum tonight and will offer specific options on the 21^st that we believe will address the Council’s objectives.  We believe it would be appropriate to enact those on October 21, so that the community can be reassured and certain of the Council’s intent on that subject, thereby enhancing discussion of other key topics in the proposed Ordinance over the next five weeks.

 

Regarding Duplexes, we believe that existing conditions in neighborhoods and a recent increase in builder interest in constructing duplexes (prior to a Council decision that may limit duplexes), warrant immediate action.  We recommend that the Council take action as soon as possible to place limitations on construction of duplexes, and the earliest date for action is October 21.

 

Citizen Workshop

 

The Council asked the Manager to consider options for conducting a Citizen Workshop, for the purpose of testing some of the proposals in the Third Draft (in the same manner that the proposals of the Second Draft were tested).  We believe that it would be possible to conduct such an event and allow the Council to achieve its target of enacting a new ordinance this fall.

 

We suggest sponsoring such a workshop on Saturday, October 26, from 9am-noon, in the same format of the last workshop (conducted on May 11).  In the last workshop, four existing projects were examined to determine the probable impact of proposed changes in regulations.  We suggest repeating this exercise, in the same format, using the same four projects, to test the impact of the following changes included in the Third Draft:

 

·        Extending Resource Conservation District (RCD) boundary to 150’

·        More restrictive Steep Slope regulations

·        Proposed Floor Area Ratio for single-family, two-family dwellings

 

A resolution is attached which would schedule this workshop for October 26.

 

 

Additional Hearing Night

 

On September 18, the Council recessed the Public Hearing on the Third Draft to October 21 (a regular business meeting).  We believe that this proposal would benefit from an additional evening devoted to Public Hearing and discussion, and suggest that the Council schedule this for Monday, October 28 (currently an open date on the Council’s schedule).  We will recommend on October 21 that the hearing be recessed and continued to October 28.  The attached resolution would make clear the Council’s intent to recess the October 21 Public Hearing to October 28. 

 

If the Council schedules the evening of October 28 for additional public discussion of the Third Draft, as we suggest, results of the October 26 workshop could be reported at that time and become a part of the hearing.  We would present options to the Council on October 28, and seek Council direction on a final set of changes to make.

 

Full Action on November 25

 

We suggest that the Council target November 25 as a possible date for enactment of the full new Land Use Management Ordinance.  This would allow the Council to offer comments and direction at the end of the October 28 Public Hearing night, in consideration of citizen comments and workshop results.  Over the next three weeks the Consultant and Town Manager could make revisions to the Third Draft as directed by the Council, such that a Final Draft could be on the table for enactment on November 25.

 

DISCUSSION OF KEY ISSUES

 

On October 21 we will bring a full report on the issues that were raised on September 18.  (List of topics included as Attachment 2.)  However, we believe that the level of community concern on several key points calls for immediate comment, and consideration of early action by the Town Council.   Below we offer comments on the topics of Nonconforming Status, Resource Conservation District, and Duplexes.  We welcome Council comments and guidance tonight on these three or any issues related to the new Ordinance. 

 

Comments on Nonconforming Status

 

There has been considerable community discussion about the proposed Third Draft of the new Land Use Management Ordinance.  There were many concerns expressed at the Hearing (and since) about what happens to properties that might become nonconforming under proposed new regulations.   We have received many calls and numerous email messages, to which we have been responding, and which are attached here (Attachment 3).  On September 27 we produced a working paper which we distributed to Council members and others interested in following discussions of this topic (Attachment 4).   Drawing on that working paper and our discussions to date, we offer the following comments.

 

What it Means to be Nonconforming

 

Development regulations change over time.  Generally, the term “nonconforming” refers to uses or features that complied with regulations at the time the use or structure began, but which do not meet current regulations.  An example might be a restaurant that was built in a commercial zone, where the property was subsequently rezoned to a residential district (nonconforming use).  Another example might be a house that was legally built within five feet of a property line, where the required setback was later changed to be a minimum of ten feet (nonconforming feature). A third example might be a lot that was created at a size of 5,000 square feet, in a location where subsequent zoning requires a 6,000 square foot minimum lot size (nonconforming lot).

 

Most ordinances (including our current ordinance) contain provisions that make it clear that nonconforming uses and nonconforming features, should, over time, be changed so that they conform to current regulations.  In our current ordinance, the time allowed for a nonconforming property to come into compliance varies depending on the situation.  In our current ordinance, conditions that do not meet existing regulations are dealt with in different ways, depending on the situation.

 

Here are four examples from the Town’s current regulations:

 

·        Front-yard parking in Historic Districts, which existed before adoption of current regulations that limit such parking, can continue for 6 months after the Town has notified the property owner of the nonconformity; after that time the parking may not occur. 

 

·        A nonconforming use involving a structure, by contrast, may continue in its present use for 40 years after such notification. 

 

·        If a structure devoted to a nonconforming use is destroyed to more than 50% of its value, it cannot be rebuilt. 

 

·        A nonconforming feature, such as a failure to meet a current setback, may be continued but may not be changed in a way that increases the nonconformity.

 

Those are the Town’s current rules.

 

Proposals

 

In June we made a series of recommendations to the Council.  Included was a discussion in which we suggested to the Council that many of the changes were of a nature that would create many nonconforming situations throughout Chapel Hill.  Accordingly, we suggested that the Council, along with the proposed new standards, consider loosening the Town’s existing regulations regarding nonconforming properties. The Council did so instruct us on June 10. 

 

Over the summer we worked with consultant Mark White to make changes according to the Council’s instructions. We took care throughout to follow the Council’s June 10 directions. Accordingly, the Third Draft did contain tougher standards and an expanded Resource Conservation District.  It also contained changes that would loosen restrictions on nonconforming properties.  For example, we eliminated the provision that would prohibit the replacement of a destroyed building devoted to a nonconforming use.

 

Comments at the Public Hearing showed that we have not gone far enough in loosening the nonconforming language.  For example, we had not deleted the provision in our current ordinance that states that, 40 years after notification of a nonconforming use, the property must be devoted to a conforming use.  Particularly in the context of a potentially expanded Resource Conservation District, many citizens expressed concern that their homes would become nonconforming, and that the regulations in the Third Draft, even with the loosening, were not acceptable. 

 

Possible Alternatives

 

We offer the following model for considering this issue.  When regulations change, all properties with existing development fall into one of three categories:

 

1.      Properties that comply with all provisions (old and new).

 

2.      Properties that are exempted from new provisions with which they do not comply (and accordingly do not become nonconforming).

 

3.      Properties that do not comply with new provisions, and therefore become nonconforming.

 

For those properties that become nonconforming, there are several alternate approaches to address the status of these nonconforming properties.  Here are alternative options.

 

·        Standard:  Allow use to continue but not expand; establish time periods after which use of property must meet current regulations.

 

·        Moderate:  Establish that these nonconforming uses can continue indefinitely, but cannot be expanded.

 

·        Less Stringent:  Establish that nonconforming uses can continue indefinitely, and may be expanded.

 

One approach would be to treat some of the changed regulations differently from others.  For example, the Council could choose to expand the RCD boundary from 100’ to 150’, and include language to say that, for any development that existed prior to the date of change, that specific change would not render any existing structure nonconforming.  The Town Council took this approach to the RCD in 1984 when the Council first established the Resource Conservation District.

 

We believe that there are many different kinds of circumstances that need to be considered as nonconforming rules are written. We believe that the appropriate solution is to strike a balance that results in new regulations that reflect the intent of the Comprehensive Plan, coupled with provisions for nonconformities that minimize (but cannot totally eliminate) impacts on existing developments.

 

When the Third Draft returns to the Council for consideration on October 21, it is our intention to offer options to the Council so that the Council will be in a position to respond to the concerns that have been raised.   It is also our intent to recommend that the Council consider voting on October 21 to enact a set of less stringent nonconforming rules.  We will recommend on October 21 that language expressing intent that “nonconforming uses shall cease” be eliminated.  We will recommend that the provision about “must be conforming 40 years after notice” be deleted.  The Third Draft already deletes prohibitions on reconstruction of nonconforming uses.

 

We believe that this action on October 21 would help reassure the community of the Council’s intent, and help set the stage for additional consideration of the remainder of the proposed Ordinance.

 

Comments on Proposed Changes to the Resource Conservation District

 

One of the most frequent subjects in the inquiries we have received is the proposal to expand the RCD protected corridor from its current dimensions (50’, 75’, or 100’ from the bank of a stream, depending upon circumstances) to a standard 150’ from the bank of a stream. 

 

What Properties Might be Affected

 

The Town Council asked for a map that would show the areas of Chapel Hill that might be affected by such a change, and we provided that illustrative map on September 18.  The Council also asked at that time how many properties might be affected by this and other proposed changes, and asked for discussion about notice to those property owners. 

 

We note that there are approximately 2,800 properties that would have additional RCD on the property, if the buffer is extended to 150’ from the banks of streams.  For some of these properties, the impact would be small or negligible.  For others, the impact might be significant.  There is not a way to report on the extent of possible impacts without examination of the circumstances of each of those 2,800 properties.  Such an endeavor would likely take many months to complete.  Full and accurate analysis of the possible impact of all the changes proposed in the Ordinance (RCD and others) on every property that might be affected would be a very difficult task.

 

Approaches to Existing Development

 

One of the key decisions the Council will face is what to do about nonconforming language for the Resource Conservation District.  Language in the current Development Ordinance is as follows (Section 5.4 of the Chapel Hill Development Ordinance): 

 

·        “This Article shall not apply to the continued use, operation or maintenance of any development (outside of the regulatory floodplain) existing, or for which construction had substantially begun, on or before March 19, 1984.  With respect to the requirements of this Article, such development shall not be considered as nonconforming within the meaning of Article 22 of this Chapter.”

 

·        “This Article shall not apply to reconstruction, rehabilitation, or renovation of any development (outside of the regulatory floodplain) existing, or for which construction had substantially begun, on or before March 19, 1984.”

 

·        “Within the part of the Resource Conservation District that is outside of the regulatory floodplain, . . . any single family or two-family dwelling or single dwelling unit within a townhouse development may be expanded.  With respect to the requirements of this Article, the dwelling or dwelling unit s expanded pursuant to this subsection shall not be considered as nonconforming within the meaning of Article 22.”  

 

            (Emphasis added)

 

If similar language were to be constructed for the new Third Draft, it would be the case that any property with an existing single-family or two-family dwelling as of the date of enactment would not be affected at all by the RCD changes.  Doing so would ease most of the concerns that have been voiced.

 

Illustrative Situations

 

We believe that including expanded “grandfathering” provisions, as described above, would work to eliminate most (but not all) of the potential problems that have been brought to our attention.  We offer the following variety of situations to illustrate the range of circumstances that need to be considered.  All of these are real examples that have been brought to our attention with questions about possible impacts.

 

Example 1:   Existing house located within the 100-year federally-regulated floodplain.  This property currently has significant restrictions and limitations due to federal law. Expansion is not permitted without a variance.  Nothing in the proposed draft makes this situation worse, nor can it make the situation easier. 

 

The remaining examples all assume that the property in question is not within the 100-year federally-regulated floodplain, but that an expanded RCD boundary encumbers more of the property than was previously the case.

 

Example 2:  Existing house was legally established, not in the RCD, but now would be in the expanded RCD. If there were language as described above, stating that single-family and two-family structures in this situation would not be nonconforming, it would mean that there would be no impact on this property if the RCD were to be enlarged.  The house could continue to exist, would not be nonconforming, could expand, and could be reconstructed if destroyed. 

 

Example 3:  Property within a development for which a Special Use Permit has been approved. According to State law, a Special Use Permit conveys a vested right to the property owner to pursue the development that was approved.  In this context the expanded RCD boundary would not apply, and the development could proceed as approved under the Special Use Permit, and not be nonconforming.

 

Example 4:  Existing undeveloped lot for which expanded RCD boundary significantly limits or takes away potential building sites.  Development of portions of this lot that would be within the new boundary of the RCD could not occur without a variance from the Board of Adjustment.  A criterion for a variance being issued is evidence of hardship.

 

Example 5:  Property subject to an approved Preliminary Plat, but for which lots have not yet been platted.  A Preliminary Plat approval is valid for one year, does not convey a statutory vested right, and the new RCD boundary would apply.  Any development on that property would need to comply with the new RCD regulations.  An example of this circumstance is property within the recently-approved Larkspur Subdivision.

 

Recommended Action

 

We intend to recommend on August 21 that language be added to the Resource Conservation District stating that, for structures existing on November 25, 2002, outside of the federally-regulated floodplain, such development may continue to exist, be renovated, and reconstructed, and not be considered nonconforming because of the changes to the RCD.  We intend to further add that any existing single-family or two-family structure that is within the Resource Conservation District may expand.

 

Comments on Duplex Issues

 

We have been hearing increasing levels of concern about the negative impact that duplex development is having on some existing neighborhoods.  The Council has been shown images of new duplexes in several older neighborhoods, and the impacts that accompany such development.  We have several observations to offer, below.  We have recently taken action to give greater scrutiny to duplex proposals, which we will describe.  We conclude this section with the suggestion that the Council consider taking action at its October 21 meeting on proposed language regarding duplexes (alternative options will be presented).

 

Current Situation

 

First, we offer the following observations on the development of duplexes in Chapel Hill.

 

A duplex is a structure that contains two separate, independent dwelling units, connected by a common wall (or a common floor/ceiling).  Duplexes are a traditional housing form in this community.  Many older neighborhoods contain a mix of single-family dwellings and duplexes, side-by-side, with the duplexes often similar in size and appearance to single-family structures.  Our regulatory approach to duplexes traditionally has been to treat duplexes, in most situations, in the same manner that we treat single-family dwellings.

 

Over the past dozen years, the nature of duplexes has been changing to the point that today’s duplex is substantially different than the traditional model.  Recent applications for duplexes show structures as large as 5,000 square feet.  Parking areas generally accompany duplexes - - 4 parking spaces are typically required, and often more spaces are provided.  We have also, increasingly, seen the phenomenon of a single family house in an older neighborhood being expanded into a duplex, doubling the intensity of use on the existing lot.

 

In response to these changed circumstances and community concern about the impacts of duplexes, we have recently adjusted our administrative procedures so as to require more information at the time a building permit for a duplex is sought.  We believe this additional information is necessary in order to fully evaluate the possible impacts of a proposed duplex, and to assure that proposed duplexes meet all requirements of the Development Ordinance.  A copy of our new information requirements is attached (Attachment 5).

 

Recommended Action

 

We believe that the increasing construction of duplexes, and the conversion of single-family homes to duplexes, presents a compelling and immediate problem confronting neighborhoods in Chapel Hill.  This issue has been discussed by the Town Council, and the Third Draft contains provisions that would delete “duplex” as a permitted use in the Residential-1, Residential-2, and Residential-3 zoning districts.  We have heard three main concerns about this proposal:

 

·        Making the change as proposed would hinder affordable housing efforts.

·        There are circumstances in which duplexes do not pose any problems.

·        Creation of nonconformities.

 

We believe that there are more precise regulatory tools that might be considered in lieu of a simple prohibition on new duplexes.  For example, the new, proposed Neighborhood Conservation District could be of help in defining specific neighborhoods where duplexes might be explicitly prohibited, or explicitly permitted.  Another suggestion would be to create a new overlay zoning district to designate areas where duplexes are prohibited (or permitted).  Another suggestion is to limit the size of new duplexes (perhaps to 1,000 square feet per side).  Such a provision would limit the impact of a duplex in an area of smaller single-family dwellings, but three bedrooms per side would still be possible. Another option would be to establish other design parameters for new duplexes (lot sizes, parking areas, etc.).

 

We intend to bring options to the Council on October 21 that the Council could choose to enact at that time, effective immediately.  Among the options will be possible Council action on the change to prohibit duplexes in Residential-1, Residential-2, and Residential-3, and an alternative to set a maximum size on new duplexes.  We note that a prohibition on duplexes in the low density residential zoning district would not have to be permanent.

 

SUMMARY

 

We recommend that the Council schedule a workshop on October 26, and schedule an evening for continuation of the Public Hearing on Monday, October 28.  Adoption of the attached resolution would do so.

 

We will prepare a memorandum for the Council’s October 21 meeting that will offer options for action that evening on those parts of the proposed new Land Use Management Ordinance that address duplexes and nonconforming status.

 

ATTACHMENTS

 

1.      Copy of Manager’s September 18 Public Hearing Memorandum (p. 12).

2.      Review of September 18 Public Hearing (p. 19).

3.      Copies of Citizen Correspondence (p. 20).

4.      Copy of September 27 Working Paper on Nonconformities (p. 64).

5.      New Information Requirements For Duplex Building Permit Applications (p. 69).

6.      Recommendation from Parks and Recreation Commission (p. 73).

7.      Recommendation from Greenways Commission (p. 74).

 

 

A RESOLUTION SCHEDULING A CITIZEN WORKSHOP ON THE PROPOSED NEW LAND USE MANAGEMENT ORDINANCE FOR SATURDAY, OCTOBER 26, 2002, AND SCHEDULING CONTINUATION OF A PUBLIC HEARING FOR OCTOBER 28, 2002 (2002-10-07/R-8)

 

WHEREAS, the Chapel Hill Town Council is continuing its discussion of a proposed Third Draft of a new Land Use Management Ordinance;  and

 

WHEREAS, a Public Hearing on this ordinance was conducted on September 18, 2002, recessed until October 21, 2002; and

 

WHEREAS, the Council has determined that additional opportunities for citizen review and comment on this proposed ordinance are needed;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council schedules a Citizen Workshop for Saturday, October 26, 2002, from 9:00 am until noon, at Chapel Hill Town Hall, as suggested in the Town Manager’s memorandum of October 7, 2002.

 

BE IT FURTHER RESOLVED that the Council intends, on October 21, 2002, to reconvene the Public Hearing, discuss the draft ordinance, consider enacting portions of the ordinance, and recess the hearing until October 28, 2002, for further consideration of remaining portions.

 

Be it Further Resolved that the Council authorizes the Mayor to send an open letter to citizens that describes key draft provisions of the new Land Use Management Ordinance, using ads placed in local newspapers, mailings, emails, or any other methods identified as appropriate by the Town Manager.

 

This the 7^th day of October, 2002.

 

Amended October 8, 2002.