AGENDA #4f

 

MEMORANDUM

 

 

TO:                  Mayor and Town Council

                       

FROM:            W. Calvin Horton, Town Manager

Ralph D. Karpinos, Town Attorney

 

SUBJECT:       Further Response to Petition from Chapel Hill-Carrboro School Board

 

DATE:             May 12, 2003

 

 

The attached resolution would authorize the Mayor to write to the North Carolina League of Municipalities to request that the League seek new legislation to authorize delay of development projects on sites identified as possible locations for schools.

 

The resolution would further recommend that the Chapel Hill-Carrboro Schools take a similar step with their State-wide School Boards Association.

 

INTRODUCTION

 

The purpose of this report is to provide further information to the Town Council regarding the petition of the Chapel Hill-Carrboro School Board regarding a proposed development on Eubanks Road. The School Board is requesting the Council take some action to delay consideration of a proposed development of this property.  The property was, on March 17, 2003, the subject of a Concept Plan review by the Council.

 

The Manager and Attorney recommend that the Council take no further action in response to the School Board’s specific request to delay consideration of any development proposal on this site.  We recommend that the Council adopt the attached resolution and pursue a change in the state enabling legislation to authorize delay of development proposals, other than subdivisions, on sites identified as potential school sites.

 

SUMMARY

 

In considering the original request from the School Board and the comments made to the Council on April 28, 2003, we believe there are four key points:

 

1.      There is no application pending for development of the Eubanks Road site.

2.      The Concept Plan presented for the site on March 17, 2003, would require rezoning.  Rezoning is a legislative decision which affords the Council wide discretion.

3.      The School Board’s presentation to the Council on April 28, 2003, appears to be asking the Council to affirmatively take an action which exceeds the Town’s legal authority and could potentially expose the Town to liability to the owner of the subject property.

4.      Legislation could be requested that would authorize municipalities and counties to enact ordinances that would allow schools an opportunity to consider and acquire sites proposed for development that do not involve subdivisions.

 

Each of these points is discussed below.

 

BACKGROUND

 

On March 17, 2003, the Town Council reviewed a Concept Plan for a 306 unit multi-family development on a 35 acre site located on the south side of Eubanks Road, between Northwoods and the University Branch Southern Railroad (Eubanks Road site). 

 

Review of a Concept Plan by the Council is a new step implemented by the Council with the enactment earlier this year of the new Land Use Development Ordinance.  Following the Concept Plan review, the Council provided comments in the form of a resolution to the owner.  Based on comments received from the Council, the owner of the subject property now has the opportunity to consider whether to submit a development application for the subject property. 

 

Following the Council’s review of the Concept Plan, the School Superintendent wrote a letter to the Town Manager on March 25, 2003, expressing concern regarding the Town’s consideration of a proposed development on the Eubanks Road site, which had been previously identified as a possible location for a school  (Attachment 1).  The Manager responded on April 1, 2003, explaining that the review was of a concept plan  (Attachment 2).  The Manager added that the Town’s Ordinances provided for some protection of identified school sites proposed for subdivisions but this Concept Plan, if made the subject of a development application, would not likely be for a subdivision. 

 

On April 14, 2003, Valerie Foushee, Chair of the School Board presented a petition to the Town Council asking the Town for advice and assistance in regard to the School Board’s interest in acquiring the Eubanks Road site (Attachment 3).  The petition was referred to the Manager and Attorney.  The Manager provided a written report to the Council on April 28 (Attachment 4).

 

DISCUSSION ON APRIL 28, 2003

 

1.  Manager’s Report:  The Manager’s report reiterated the comment made on April 14 that the reservation language in the Town’s Land Use Development Ordinance, applies only to subdivisions.  The report also stated that the zoning and rezoning of land is a legislative act and the Council is not required to rezone a property upon request.

 

2.  Remarks by School Board Vice Chair:  School Board Vice Chair Gloria Faley asked the Town Council to delay, for no specific length of time, any consideration of an application to develop the Eubanks Road site in order for the School Board and County to complete its planning work, decide if the site was of interest as a school location, and initiate steps to acquire the site. 

 

3.  Questions and Comments by Council Members:  Council members indicated an interest and concern for the issues raised by the School Board and agreed to seek further guidance from the Manager and Attorney on how to respond to the School Board.  Council members also asked about the prospects of seeking a change to the Town’s legislative authority to allow reservation of identified school sites which are the subjects of proposals for development other than subdivisions.

 

Following the discussion, the Council referred the matter to the Manager and Attorney.

 

RESPONSE TO DISCUSSION ON APRIL 28

 

We believe there are four key points raised by the April 28 discussion that merit comment:

 

1.  No pending application.

 

No application for development of the Eubanks Road site has been submitted.  As noted during the April 28, 2003, discussion, submittal of an application could be months away.  Once submitted, an application, if it is for rezoning and a special use permit, could take several months to go through the Town’s development review process and to reach a Council public hearing.  The School Board has an opportunity now and will continue to have an opportunity to discuss acquisition of this parcel with the owner and consider other steps to acquire the property during this period of time. 

 

2.  The Concept Plan presented for the site on March 17, 2003, would require rezoning.  Rezoning is a legislative decision which affords the Council wide discretion.

 

As indicated in both the March 17 memorandum, and the April 28 response to the School Board petition, development of the site in the manner described in the Concept Plan would require rezoning and a special use permit.  Rezoning is a legislative act for which the Council has broad discretion.  As long as the current zoning of a parcel affords an owner some legally reasonable use, there would generally not be any legal obligation to modify the current zoning.  There would be even less legal basis to contend that modifying the current zoning to a specific alternative zoning classification is legally mandated. 

 

Moreover, under the Town’s Land Use Management Ordinance, rezoning of property is supposed to occur upon a finding of one or more of the following justifications:

 

a.   To correct a manifest error;

b.   Because of changed or changing conditions; or

c.   To achieve the purposes of the Comprehensive Plan.

 

Absent a legislative determination by the Council that one or more of these justifications existed and without evidence that the current zoning of the property denies reasonable use of the property, the Council would not be under any legal obligation to modify the zoning currently in place. 

 

3. We are concerned that the School Board appears to be asking the Council to affirmatively take an action which exceeds the Town’s legal authority and which could potentially expose the Town to liability to the owner of the subject property.

 

As stated in the Manager’s letter to the School Superintendent dated April 1, 2003, and in the memorandum to the Town Council on April 28, 2003, the Town’s Land Use Development Ordinance provides that a proposed subdivision development can be delayed for up to 18 months to afford the School Board an opportunity to acquire a parcel previously identified as a site to be reserved. 

 

The Town’s Ordinance and State Statutes do not authorize or provide for the same reservation time period when the proposed development is something other than a subdivision.

 

The written petition from the School Board Chair, dated April 7, 2003 (Attachment 3), stated in part:

 

“I am filing this petition requesting that you consider the need for future school sites as you review the proposal for this apartment complex.  In order for the project to be approved, you must re-zone the property and award a special use permit. Therefore, you have considerable influence over how this property will be developed.”

 

On April 28, the presentation on behalf of the School Board, by the Vice-Chair, asked that the Council delay taking action on the proposed development until the School Board and the County made decisions on school locations.  (See Attachment 5, transcript of the April 28 Council meeting.)

 

The request of the School Board, as presented to the Council on April 28, in effect appears to be that the Council take action which extends its authority to delay subdivisions under this law to proposals which do not involve subdivision of land and, further, to delay such consideration for an indeterminate period of time. 

 

The concern we have as a result of the School Board’s request, as presented on April 28,  is that such action would exceed the Town’s legal authority.  As stated above, the Council has broad, but not unlimited legislative discretion when considering a rezoning request. Although this discretion is broad, we believe the Council should not base its decision to not rezone a property, and should not categorically act to delay consideration of an application, for a reason not authorized by law. 

 

A determination by the Council that this property will not be considered for rezoning or that the Council will deliberately delay processing any application for development of this site for the express purpose of allowing the School Board to continue with its plans to consider this property would likely be determined by our Courts to not be authorized by law.[1] Moreover, such an action might impact the marketability and value of the subject property in a way that would be to the benefit of the School Board and the detriment of the owner.  Evidence of such actions and impact might be used in a manner that is not in the Town’s best interest in any potential voluntary acquisition effort initiated by the School System, or in an eminent domain proceeding involving this property, or in some other legal action, in which the Town could be named a defendant or co-defendant.  [2]

 

4.    Efforts to seek legislation to authorize the delay of development proposals other than subdivisions could be initiated by the Town and by the Board of Education.

 

The need to reserve and protect potential school sites for acquisition by the County and the School Board is becoming an issue of greater importance as Southern Orange County continues to be developed.  Legislation could be sought that would extend the existing authority for municipalities and counties so that potential school sites could be provided some protection whether a proposed development is for a subdivision, as is currently allowed, or some other type of development.   Initiatives with the League of Municipalities and the School Boards Association could be started.  It is not likely that such legislation could be considered this year, given that the cross-over deadline for legislation passed several days ago. Beginning the conversations with the appropriate League of Municipalities Policy Committee and other interested parties now could result in the possibility of such a proposal being considered in the 2004, Short Session of the General Assembly, or more likely, in the 2005 Long Session. 

 

RECOMMENDATION

 

We recommend that the Council take no further action with respect to the specific request presented by the School Board to deny or delay consideration of any development application for this property in order to allow the School Board to decide whether it wants to buy the property.  If and when an application for development of this property comes before the Town Council, we recommend that it be considered based on its merits and the applicable standards and procedures of the Town’s Land Use Management Ordinance and that it receive the same fair, objective treatment afforded any other application.  If the proposed development involves rezoning, the Council will have broad legislative discretion to exercise in its consideration of the application.

 

We recommend the Council adopt the attached resolution to authorize the Mayor to write to the NC League of Municipalities and request that the League seek new legislation to authorize delay of development projects on sites identified as possible locations for schools when the proposed projects do not involve a subdivision. We further recommend that the Council authorize the Mayor to write to the Chapel Hill-Carrboro School Board of Education and propose that they take similar initiatives with their state-wide organization. [3]

 

ATTACHMENTS

 

1. March 25, 2003, letter from Neil Pedersen to Cal Horton (p. 8).
2. April 1, 2003, letter from Cal Horton to Neil Pedersen (p. 18).
3. April 7, 2003 letter/petition from Valerie Foushee to Kevin Foy (p. 23).
4. April 28, Agenda item #5d (p. 24).
5. Transcript of April 28 discussion (p.31).

 

 

A RESOLUTION AUTHORIZING THE MAYOR TO WRITE TO THE NORTH CAROLINA LEAGUE OF MUNICIPALITIES TO REQUEST THAT THE LEAGUE SEEK NEW LEGISLATION AUTHORIZING DELAY OF DEVELOPMENT ON SITES IDENTIFIED AS POTENTIAL SCHOOL LOCATIONS AND TO THE CHAPEL HILL-CARRBORO SCHOOL BOARD PROPOSING THE BOARD ALSO PURSUE SUCH LEGISLATION (2003-05-12/R-4)

 

WHEREAS, the location of public schools in urbanizing areas in southern Orange County and in and near other municipalities throughout the State is becoming a greater challenge as potential sites for future public schools are acquired for private development; and

 

WHEREAS, municipalities and counties in North Carolina are currently authorized to enact regulations that can delay proposed subdivision development on sites identified as potential school sites; and;

 

WHEREAS, new development proposed for such sites not involving the subdivision of land, such as special use permit or site plan development,  is not subject to the same provisions of such law; and

 

WHEREAS, such development of sites identified as potential school locations may result in the loss of opportunity for local public school systems to take the steps necessary to continue to provide the facilities necessary to meet their responsibilities to provide public educational facilities for the citizens of North Carolina;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Mayor is authorized to write to the North Carolina League of Municipalities to initiate efforts to modify the existing State Law to allow municipalities and counties to delay non-subdivision development proposals in a manner currently authorized for subdivisions in order to afford local school systems the opportunity to consider acquisition of such sites proposed for development.

 

BE IT FURTHER RESOLVED that the Mayor is authorized to write to the Chapel Hill Carrboro City Schools and propose that the School Board undertake a similar initiative with its State-wide organization.

 

This the 12^th day of May, 2003.