ATTACHMENT 2
Attachment 2: Responses to Issues Raised at
The Town Council’s September 18 Public Hearing
October 28, 2002
1. Neighborhood Conservation District
A key new concept that was proposed last year by the consultant for this project is to create a new neighborhood planning tool - - Neighborhood Conservation District, whereby residents of a particular neighborhood could work with the Planning Board and the Town Council to create zoning regulations that are tailored and customized for their particular neighborhood. The key decision point now is about what threshold should be established for gauging neighborhood interest in pursuing such an initiative. Earlier drafts called for 75% of owners to express interest. In response to concerns that this presented too great an obstacle, the Third Draft currently calls for a 51% threshold. The Manager’s Preliminary Recommendation is to stay with the 51% threshold.
2. Process for Minor Subdivisions
Current regulations allow creation of up to 4 lots, in certain circumstances, as a minor subdivision which the Town Manager is authorized to approve. There have been neighborhood concerns that, with infill development becoming more common, this type of small-scale activity should be reviewed and approved by the Planning Board rather than by the Town Manager. In response, the Third Draft calls for Minor Subdivisions to be approved by the Planning Board. The Manager’s Preliminary Recommendation is to make this change.
3. Underground Electric Lines
There has been considerable discussion over the last six months about whether or not it is possible to require that new 3-phase electric utility lines be buried underground. The September 18 memorandum contained a discussion paper on this topic that concluded that, absent special enabling legislation, the Town could not unilaterally enforce such a requirement. In response to these concerns, the Third Draft includes language that establishes an expectation that such lines will be installed underground, but allows consideration of a number of factors (including whether there is a rational nexus between the impact of the proposed development and the proposed utility requirement). The Manager’s Preliminary Recommendation is to enact the language that is in the Third Draft, and also to seek additional special legislation in the next session of the General Assembly that would authorize additional requirements.
4. Restrictions on Primary Height Limits
Current regulations call for a primary height limit of 29’ in most residential zoning districts. (Primary Height is the tallest a structure can be at the setback line, the point closest to an adjacent property. A building can be taller the further it is located away from the property lines). In response to concerns that this was too great a height in many areas, especially where setbacks are as small as 8 feet, the Primary Height Limit in residential zones was reduced to 20’ in the Third Draft. At the September 18 Public Hearing and since, it has been suggested that 20’ is not reasonable in many circumstances; if a crawl-space is part of a building’s foundation, a 20’ limit might restrict a building to one-story at the setback line. We believe that a 24’ Primary Height limit would allow two-stories (but not three) at the setback line. The Manager’s Preliminary Recommendation is to change the limit to 24’.
5. Parking Maximums
There has been much discussion about establishing a maximum parking requirement, to accompany minimum requirements. All drafts so far have included maximums, and the Third Draft was accompanied by a Discussion Paper on parking requirements prepared by the consultant. Two issues have emerged in discussions: (1) The maximums are significantly lower than the levels of parking that currently exist at several local businesses; and (2) In some cases in the Third Draft, the minimum and maximum parking requirements are identical, leaving no flexibility. The Third Draft responds to the first concern by including a provision that allows the Council to approve a level of parking that is higher than the maximum, if a need is demonstrated. We believe that an appropriate response to the second concern is to adjust the maximum requirements such that, for all uses listed, there is a minimum 25% difference between the minimum and the maximum. The Manager’s Preliminary Recommendation is to incorporate both of these suggestions in the Final Draft.
6. Front-yard Parking Restrictions
Currently, front-yard parking in Chapel Hill’s Historic Districts is limited to 40% of the area of any front yard. We believe that provision has worked well to help maintain the character of our Historic Districts. It has been suggested that other neighborhoods throughout Town would similarly benefit from this restriction, and the Third Draft extends this restriction townwide. The Manager’s Preliminary Recommendation is to include this provision in the Final Draft.
7. Floor Area Ratio Restrictions for Single-family/ 2-Family Dwellings
There are two concerns about building size that have been raised during this community dialogue on development regulations. The first is that in older neighborhoods, with small houses on small lots, the neighborhood character can be damaged by construction of a single-family or two-family dwelling that is out of scale with the neighborhood. The second is the potential for “tear-downs,” a phenomenon that other communities have experienced where a builder will buy an existing house in a neighborhood, demolish that house, and build a very large dwelling in its place (it is not uncommon in other communities for this to result in homes that are 7-10,000 square feet in size). In response, the Third Draft includes a Floor Area Ratio that would apply to single-family and two-family dwellings (currently such dwellings are exempt from floor area ratios). The Third Draft sets this ratio at .30. (Example: on a 10,000 square foot lot, the maximum house size would be 3,000 square feet.). Concerns were raised at the September 18 Public Hearing that this proposed ratio is too low, that it would significantly impair the construction of typical dwellings. In response to these concerns, the Manager’s Preliminary Recommendation is to include a Floor Area Ratio for single-family and two-family dwellings, but to set the ratio at .40.
8. Occupancy Restrictions
This topic continues to be the subject of discussion and concern, with no clear consensus solution apparent. Neighborhoods have repeatedly cited the negative impacts that have accompanied the occupancy of single-family or two-family dwellings by large numbers of individuals. Current regulations include occupancy limits that are difficult to understand and difficult to enforce. As we have listened to comments and discussion to date, two approaches to this issue have emerged: (1) Address the concerns by managing physical factors, such as # of parking spaces, sizes of buildings, impervious surface ratios, front-yard parking requirements, etc., rather than by managing occupancy; and (2) Continue to have occupancy limits, but change the limits that are in the Current Development Ordinance. The Third Draft takes the first approach, eliminating most occupancy restrictions but adding new requirements regarding parking and size of structures. We believe that pursuing both approaches is desirable. We have recommended parking, size, and impervious surface restrictions. We also recommend, as a supplement and general rule, that the ordinance state clearly that if more than 4 unrelated individuals occupy a dwelling unit (either a single-family house or half of a duplex), that the use be considered to be a Rooming House with the extra level of requirements and review that accompany that more intensive use. The Manager’s Preliminary Recommendation is to include the physical restrictions, and set the general rule that more than 4 unrelated people per dwelling should be considered a Rooming House.
9. Tree Ordinance
The current Development Ordinance has a set of Tree Protection regulations that we believe have worked well for Chapel Hill. There are 3 areas in which we believe the regulations could be reasonably strengthened, and these three changes are included in the Third Draft: (1) Adjust the definition of “specimen tree” - - it is currently described as a tree with greater than a 24” diameter; the Third Draft proposes changing that to 18” diameter; (2) Add language to encourage preservation of stands of trees, in addition to individual specimen trees; and (3) Extend requirements for tree surveys and special attention to construction of single-family and two-family dwellings (currently exempted), when more than 2,000 square feet of land is to be disturbed. The Manager’s Preliminary Recommendation is to include all of these changes in the Final Draft, but to adjust the disturbed land area threshold to 5,000 square feet. Making this adjustment would put this set of requirements in line with similar stormwater management requirements for single-family and two-family homes. If both thresholds are the same, someone building a home either is in the threshold condition for both (requiring the hiring of design expertise), or is not in the threshold condition for either. We believe that this would be a benefit in implementing and enforcing these regulations.
10. RCD: Stricter Requirements Close to Streams
Current RCD regulations apply one set of standards to all areas within the RCD. Recognizing that the areas closest to a stream are the most environmentally sensitive, the consultant suggested establishing three zones within the RCD - - with regulations getting more restrictive the closer one moves toward a stream bank. The Third Draft establishes these three zones, with a tiered approach to restrictions. It has been suggested that one set of standards should continue to apply to the entire RCD. The Manager’s Preliminary Recommendation is to employ the tiered approach.
11. Raise RCD Elevation from 2’ Above Regulatory Floodplain to 3’
When the Resource Conservation District was established in 1984, an important consideration was the fact that Chapel Hill’s floodplain maps were old and out-of-date. The Federal Emergency Management Agency (responsible for mapping floodplains) had last mapped Chapel Hill decades earlier. This meant that the federally-delineated 100-year floodplain boundaries, as indicated on FEMA maps, did not include flood-prone areas in all locations. In order to partially compensate for this, an “RCD Elevation” was established as 2’ above the 100-year floodplain elevation, until the maps could be updated. The maps have still not been updated, and development since 1984 has altered drainage conditions further. Accordingly, we have recommended in the Third Draft that the RCD Elevation be raised one more foot until the re-mapping is completed. At the time new floodplain maps are in hand, we believe that the RCD Elevation should be eliminated. But for now, we recommend raising it to 3’. The Manager’s Preliminary Recommendation contains this provision.
12. Require Variance for Streets/Bridges in RCD
The Third Draft contains a provision that would prohibit the construction of any street or bridge within the RCD unless a variance is granted by the Board of Adjustment. We believe that decisions about the locations of Chapel Hill streets rest more appropriately with the Town Council than with the Board of Adjustment, and accordingly recommend that this provision be changed such that a Special Use Permit by the Town Council, rather than a variance from the Board of Adjustment, be required in order to construct a street or bridge in the RCD.
13. Width of RCD Protected Area
Another key point of active discussion since June has been a proposal to increase the dimensions of the Resource Conservation District from 100’ from the bank of a stream to 150’ from stream banks. The Third Draft includes this provision. We have noted that expanding the RCD stream corridor distance to 150’ will mean that many properties and portions of properties in Town, 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’ 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’. We believe that there is benefit in having a standard distance that applies to all streams. We note that the proposed new definitions for perennial and intermittent streams may expand the coverage of the Resource Conservation District (more on that below). For these reasons our Preliminary Recommendation is to set the stream protection corridor at a standard 100’ from the bank of any perennial or intermittent stream.
14. Restrictions on Building on Steep Slopes
A compelling case was made at the September 18 Public Hearing that the Steep Slope restrictions proposed in the Third Draft are impractical and not workable. We believe that the approach suggested by the Planning Board on this issue is reasonable: Set a limit on land disturbance for all areas that have slopes greater than 25%. We note that this concept appears sound, but that there are differing opinions about what the limitation on land disturbance should be. Given the fact that there are many zoning lots in Chapel Hill where the entire lot has slopes greater than 25%, we believe that it would be reasonable to set the land disturbance limit for such areas as 50%. It has also been suggested that the limit should be considerably lower, perhaps 15%. The Manager’s Preliminary Recommendation is to include the Planning Board’s approach, and set the land disturbance limit at 50%.
15. Impervious Surface Restrictions
Half of Chapel Hill is within the Jordan Lake watershed, and is therefore covered by State-mandated restrictions on impervious surfaces. The Third Draft includes language that would expand coverage of those restrictions townwide, and we believe this provision will result in stormwater management and environmental benefits. It was pointed out at the September 18 Public Hearing, and again on October 21, that the watershed regulations “grandfather” existing impervious surface on a lot, applying the restrictions to land that is currently pervious, but that the extension of those regulations in the Third Draft does not include the same exemption. We agree that the exemption is important to making this kind of restriction workable. The Manager’s Preliminary Recommendation is to expand the impervious surface restrictions as proposed in the Third Draft, but also to include the exemption for existing impervious surfaces.
16. Stormwater Management Regulations
The Third Draft contains enhanced regulations requiring a higher level of stormwater management on development sites, designed to control rate, quality, and volume of runoff from newly developed land. The Third Draft would also extend these requirements to development of single-family and two-family dwellings, if more than 5,000 square feet of new land disturbance is involved. We believe that these proposals are needed and appropriate, and recommend that they remain in the Final Draft.
17. Nonconforming Status of Undeveloped Land
There has been considerable comment about how changed regulations would affect recently approved developments. For developments with Special Use Permits, such as Southern Village, a vested right to the development as approved was established with the Special Use Permit, and the new regulations would not apply. For developments that are on the ground or for which a building permit has been issued and remains valid, similar rights to continue construction apply. However, the case is different for undeveloped property. There are two examples of undeveloped property that have been brought to the Council’s attention: individual, vacant lots in subdivisions (such as Morgan Bluff), and recently approved but not yet platted subdivisions, such as the Larkspur and Cross Creek Subdivisions. We recommend that the Final Draft include language clarifying that any proposed changes to the Resource Conservation District boundary not apply to developments that have been approved since the RCD was established in 1984. This would mean that Special Use Permits (which already have statutory vested rights), along with Subdivisions and Site Plan Approvals (which do not have statutory vested rights) would all be exempted from the changed boundary if those developments were approved between March 1984 (the date of the original RCD ordinance) and November 25, 2002 (possible effective date of enactment of Land Use Management Ordinance). This would mean that recently approved developments, such as the Larkspur and Cross Creek Subdivisions, would not be affected by the changed RCD boundary. Nor would existing, vacant lots in subdivisions that were approved between 1984 and November, 2002 (such as Morgan Bluff). We note that it has been suggested that the RCD exemption for undeveloped lots apply to all and any proposed RCD changes. We do not recommend this approach. We believe that it is reasonable to exempt such lots from boundary changes. However, we believe that it is reasonable to apply, within already anticipated RCD areas, the changes to RCD standards that are proposed in the Third Draft. (Examples include a more restrictive set of permitted uses in areas closest to a stream, requiring a variance for a street or bridge, and more restrictions on land disturbance in areas closest to the stream.) The Manager’s Preliminary Recommendation is to exempt recently approved undeveloped lots from changes to the RCD boundary, but not from changes to standards.
18. Definitions of Intermittent and Perennial Streams
There has been considerable discussion regarding how to define Intermittent and Perennial Streams. The Third Draft contains definitions that we believe are a marked improvement over the current definition of perennial stream that is in today’s Development Ordinance. However, we believe additional clarifications are needed. We offer below adjustments to these definitions, which we believe will serve to strengthen the definitions in the Third Draft and maintain consistency with statewide regulations that will soon be required for Chapel Hill. We propose:
Intermittent Stream: A stream that flows only during wet periods of the year and flows in a continuous, natural channel or depression. The flow may be heavily supplemented by stormwater runoff. Intermittent streams include those that are shown on the Town’s Geographic Information System (GIS) coverage, the USGS 7.5 Minute Quadrangle, or the USDA Orange County Soil Survey (subject to field verification) in addition to streams confirmed to be intermittent by field verification by the Engineering Department.
Intermittent Stream field verification criteria: An intermittent stream shall be confirmed by the Engineering Department by at least two (2) of the following:
A) The presence of water during periods of wet weather or more than 48 hours after a storm event of at least 0.5”.
B) The presence of geomorphological features that are characteristic of a fluvial system, such as:
a. Riffle/pool sequences
b. Areas of alluvial deposition (i.e. point bars)
c. Sinuosity
d. Fluvially weathered bed materials (i.e. cobbles, gravels, boulders).
C) The presence of a channel or depression created by topographic features that is hydrologically connected to surface waters through surface flow or a pipe.
D) The presence of amphibian larvae or benthic macro-invertebrates.
Perennial Stream: A stream that flows throughout the majority of the year and flows in a well-defined channel. Perennial streams include those that are shown on the Town’s Geographic Information System (GIS) coverage, the USGS 7.5 Minute Quadrangle, or the USDA Orange County Soil Survey (subject to field verification) in addition to streams confirmed to be perennial by field verification by the Engineering Department.
Perennial stream field verification criteria: A perennial stream shall be confirmed by the Engineering Department by at least two (2) of the following:
A) The presence of water during a year of normal rainfall.
B) The presence of geomorphological features that are characteristic of a fluvial system, such as:
a. Riffle/pool sequences
b. Areas of alluvial deposition (i.e. point bars)
c. Sinuosity
d. Fluvially weathered bed materials (i.e. cobbles, gravels, boulders).
C) The presence of riparian obligate vegetation species or aquatic algae along the stream channel and banks.
D) The presence of fish, amphibian larvae or benthic macro-invertebrates.
The Manager’s Preliminary Recommendation is to use the above definitions in the Final Draft.
19. Renewable Energy References
A request was made to include more references to the use of Renewable Energy as a design objective. We propose to do so in the Final Draft.
20. Discretion for Town Council
It was suggested at the September 18 Public Hearing that more discretion and flexibility should be available to the Town Council in review of Special Use Permits. Additional flexibility is built into the Third Draft, and we recommend retaining that.
21. Discretion for Town Manager
It was suggested at the September 18 Public Hearing that less discretion and flexibility should be available to the Town Manager in review of and action on development applications. There is less discretion for staff action in the language of the Third Draft, and we recommend using that language in the Final Draft.
22. Housing Costs
It was suggested at the September 18 Public Hearing that many of the proposed changes will increase the cost of developing land in Chapel Hill, and therefore add to the cost of developing housing. We agree that the added restrictions and requirements will likely add cost to a land development project, but believe that the added costs are justified by the community benefit that will result, and believe that the additional costs would be a modest component of any development budget. We note the Council’s ongoing initiatives to promote affordable housing opportunities in working with developers and local housing organizations, and observe that those efforts are producing new affordable housing opportunities in Chapel Hill.
23. Applicability to UNC
Questions were raised about the extent to which the changes that have been proposed would apply to development proposed by the University of North Carolina. We note that under the provisions of North Carolina Statutory Law Town zoning regulations are “applicable to the erection, construction, and use of buildings” of the University. University development that does not involve buildings is not subject to Town zoning regulations
24. Lighting
We note that lighting standards proposed in the Third Draft are considerably more detailed and prescriptive than current Development Ordinance language. We believe that this additional specificity will be helpful, and recommend carrying this language into the Final Draft.
25. Floor Area Ratios for Town Center
A citizen noted at the Hearing that Floor Area Ratios for Town Center zoning districts should be increased significantly, perhaps doubled, as had been proposed in the Second Draft. We note that extensive study of the Second Draft led to a conclusion that the increased floor area ratios that were proposed would result in a substantial change to the character of Downtown Chapel Hill. The Third Draft goes back to the Floor Area Ratios we have in place today, and we believe those work well for Downtown Chapel Hill. We do not recommend changing the ratios for the Final Draft.
26. Use of Herbicides
A citizen suggested that language be included in the Final Draft that would place requirements on utility companies regarding use of herbicides. We note such regulation is within the purview of the NC Utilities Commission, and we do not believe that such requirements could be included in a local zoning ordinance.
27. Effects on Property Values
Several speakers noted possible negative impacts on property values if changed regulations were to be enacted. We note that the Council has listened carefully to such concerns, resulting in Council action on October 21 to significantly re-write portions of the ordinance dealing with nonconforming situations so as to minimize impacts on owners of existing developed property.
28. Effect on Pending Downtown Recommendations
A representative of the Downtown Commission spoke on September 18 to describe efforts of the Commission to improve Downtown Chapel Hill, and expressed a hope that the changes under consideration would be consistent with plans being considered by the Commission for such improvements. We have reviewed the Third Draft as requested, and believe that there are no changes being proposed to development standards or use regulations that would hinder pursuit of the proposal being developed by the Commission.
29. Schedule/Process/Notification
We believe that the Council can be in a position to enact a new Land Use Management Ordinance on November 25 if it chooses to do so. Enactment is also possible any time after November 25. We believe that notification of proposals and citizen participation in Council and community meetings have met and surpassed legal requirements for a project of this nature, and that the multiple opportunities for citizen input have resulted in an improved draft.
30. Unintended Consequences
It was suggested at the September 18 Public Hearing that there may be unintended consequences of some of the changes that are being proposed. We agree that this is so, and note that the Council and community have taken significant steps to attempt to anticipate as many of the consequences as can reasonably be anticipated. It may be the case, as it generally is following adoption of a major document such as a zoning ordinance, that adjustments may be warranted and appropriate in the future.