MINUTES OF A CLOSED SESSION OF THE CHAPEL HILL TOWN COUNCIL

THURSDAY, JULY 2, 1998

 

Mayor Rosemary Waldorf opened the closed session at 9:04 p.m.  Council Members in attendance were Flicka Bateman, Joyce Brown, Joe Capowski, Pat Evans, Kevin Foy, Julie McClintock, Lee Pavăo, and Edith Wiggins.  Staff members in attendance were Town Manager Cal Horton, Town Attorney Ralph Karpinos, Assistant to the Manager Ruffin Hall, and Deputy Town Clerk Joyce Smith.

 

Mr. Karpinos reviewed Michael Brough's letter distributed to the Council yesterday, stating that Mr. Brough was asking for the Council to commit to a process for consideration of his clients’ concerns.   Mr. Karpinos said that York Properties did not agree with the interpretation of the stipulation suggested by Mr. Brough's letter regarding the opening of Pinehurst Drive.

 

Council Member Bateman asked whether the Council was being asked to decide if "or" in the stipulation regarding the opening of Pinehurst Drive really meant "or".  Mr. Karpinos responded that Mr. Brough was attempting to find a way to delay the opening of Pinehurst Drive until the school was built, which might take four or five years.   Mayor Waldorf stated that Mr. Brough and his clients were interested in having this matter resolved as quickly as possible.

 

Mr. Karpinos said that a court date had been scheduled for July 24th on the Infrastructure special use permit, and believed that the other parties saw an advantage to settling the matter without going to court because of the money involved.  He said after next Wednesday’s Council meeting the Council would not have another opportunity to comment on this matter.   Mr. Karpinos also said that the parties were asking for things which the developer might not necessarily want to agree to, and he was not sure that if the Town came to an agreement with the parties that the developer would accept the terms of  such an agreement.

 

Council Member McClintock said she believed Mr. Brough was very clear on what he wanted from the Council at this time.  She said we should agree on what could be agreed on and that this information be relayed to Mr. Brough.

 

Council Member Brown said if the Council agreed with Mr. Brough and the Pinehurst Drive residents, then Mr. Perry might not agree.  Mr. Karpinos said he would like to speak with Mr. Brough and Meadowmont’s attorneys in an effort to resolve these matters.  Mr. Karpinos also said that the developer would not likely accept any agreement which would constitute a change to the special use permit because it would allow the opportunity for another lawsuit.

 

Council Member Brown requested a clarification of Mr. Brough's request.  Mr. Karpinos said the residents were requesting that the Council interpret the special use permit stipulation to mean that Pinehurst Drive would only open when the school was opened, and if the school did not open by 2003, then and only then would the 201st building permit standard apply.  Council Member Foy asked what the consequences of this would be.  Mr. Karpinos answered that the Council would have to state that this interpretation was the intent of the Council at that time.  Mr. Horton stated that this interpretation was not his intention at the time he made his recommendation to the Council.

 

Mayor pro tem Capowski noted his objection to any discussion taking place in closed session not directly related to the subject at hand.  Mayor pro tem said the Council should discuss only what had been designated, or risk violating the State’s Open Meeting laws.

 

Council Member Evans said when this road was opened, the increase in traffic would be immediate, rather than a gradual impact, and that was why the figure of 201 building permits was chosen rather than 500; to decrease the sudden impact.

 

Council Member McClintock said the Council needed to make a determination on this issue, but suggested that the Town could use its police power to close Pinehurst Drive until the school was built, rather than relying on the stipulation in the special use permit. 

 

Council Member Brown said there were two positions, the residents and the developers, and either way the Council decided might trigger future legal action.  Mayor Waldorf said she believed this could be successfully negotiated between the effected parties.

 

Council Member Brown inquired whether the Council intended to make a decision on the interpretation.   Mr. Karpinos said he believed the risk was that this proposal could be considered a de facto change in the special use permit.

 

Council Member Bateman asked whether it was true that the building permits could be issued fairly quickly.   Mr. Horton said yes, if the developer had the final plans approved.  Mr. Karpinos said there might be an opportunity to talk with the Meadowmont attorneys and suggest that they apply for only 200 building permits prior to the year 2003.

 

Council Member McClintock inquired about her earlier suggestion regarding the use of police power.  Mr. Karpinos answered if the Council exercised police power in a way which was inconsistent with the ordinance or the special use permit, then there was the possibility of, in effect, changing the permit.  Council Member McClintock asked which option, using police power or interpreting the stipulation as originally intended, would be the most risky from a legal standpoint.  Mr. Karpinos said if one were going to grant a concession, and it did not achieve settlement, then one had given up something for nothing.

 

Council Member Wiggins asked whether or not Mr. Brough's proposal was to settle both the infrastructure and the village center lawsuits.  Mr. Karpinos said that was what Mr. Brough was proposing.

 

Mayor Waldorf asked whether it was legal as part of the settlement to direct the Town Manager to make a minor modification to change the stipulation in the special use permit to amend the number of building permits issued to 501.   Mr. Horton stated that this would not be considered a minor change.

 

Mr. Karpinos suggested that he speak to Mr. Perry's attorney and state that the Council was close to an interpretation, but one of the things the developer could do was approach Mr. Brough and assure him that only 200 building permits would be applied for until a certain time.  Mr. Karpinos also said this might be a viable way to settle the issue.   Mr. Karpinos suggested that he speak to the other attorneys and that the Council discuss this matter again on Wednesday, July 8th.

 

Mayor pro tem Capowski sought a clarification of the request.  Mr. Karpinos answered that the Council was being asked to interpret the stipulation in a way that it might not have intended.  He said the stipulation is "or", not that both events have to occur before Pinehurst Drive was opened, and that the Council was being asked to interpret the language in this way.   Mayor pro tem Capowski asked if the Council interpreted the stipulation the way the Pinehurst residents had asked, what would happen first?  Mr. Karpinos said the developer would not agree to this so the lawsuit would not be settled, and the Council would have gained nothing.

 

Council Member Evans said the idea of approaching the attorneys and asking that they agree to applying for only 200 buildings permits was a reasonable effort.  Mr. Horton said he did not believe the developer’s attorneys, the Pinehurst neighbors’ attorneys, and the Town's attorney had all sat down in the same room for discussion, and he believed allowing Mr. Karpinos to do this would be beneficial.  Mr. Karpinos said he believed the Council could make a positive statement regarding traffic calming, noting that the Council would further consider the other issues.

 

The Council agreed by consensus to make a statement that the Town would commit to a public process to consider installing the kinds of traffic calming devices proposed by the Pinehurst Drive neighbors.

 

Mayor Waldorf suggested the possibility of implementing traffic-calming measures prior to the opening of Pinehurst Drive.   Mr. Horton suggested that the Council consider adding Burning Tree, Cleland and possibly other nearby streets as well, noting that the process could be to develop traffic calming proposals through community input. 

 

Council Member Brown asked in simple language what was agreed to and who had agreed to it.  Mayor Waldorf said all had consented that the Council would agree to a public process for considering traffic calming measures for Pinehurst Drive.  Council Member Brown asked whether this met the request of neighbors.  Mr. Horton said he believed this was the case.

 

Mr. Karpinos distributed a draft resolution to the Council for their comments.

 

Council Member McClintock suggested some alternate language to the second paragraph under Traffic Calming to say “the Town’s approval of the Meadowmont Village Center and Infrastructure Special Use permits,”.

 

Council Member Wiggins suggested some additional language be added to #1.c, so that it read, “Availability of funding, including the previously pledged $75,000.”

 

Mayor pro tem Capowski suggested some additional language to #1.c to add the word “private” after the phrase “Availability of”.

 

Council Member Wiggins asked if the $75,000 pledged to the Town for traffic calming was considered private funding.  Mr. Horton said the moment it was received by the Town it became public funds to be disposed by the Council as it saw fit.

 

Mayor pro tem Capowski asked whether the Pinehurst Drive residents and the developer came to some settlement, would this be a private or  public affair.  Mr. Karpinos said this would be a  private matter between the two parties.  Mayor pro tem Capowski said he would want some assurance that such a settlement would not harm other nearby neighborhoods.  He suggested some additional language be added to the resolution to assure that other citizens were not harmed by the settlement of this lawsuit.  Mr. Karpinos suggested the statement reading, “We believe the terms of any settlement should be made a public record.”

 

The Closed Session was adjourned at 10:17 p.m.

 

The Council returned to their regular business meeting.

 

RESOLUTION R-5 WAS ADOPTED BY A VOTE OF 8-1, WITH MAYOR PRO TEM CAPOWSKI VOTING NAY.

 

A RESOLUTION STATING THE POSITION OF THE CHAPEL HILL TOWN COUNCIL WITH REGARD TO THE PROPOSED SETTLEMENT OF THE MEADOWMONT LITIGATION (98-7-2/R-5)

 

WHEREAS, the Council has considered the July 1, 1998 letter from the attorney for the Pinehurst neighbors to the Developer’s attorney, the June 22 petition to the Town Council, and other appropriate factors;

 

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council responds as follows:

 

1.     Traffic Calming Devices.

 

The Council affirms its intent to continue to pursue the development and implementation of reasonable traffic calming measures in all the neighborhoods surrounding Meadowmont.

 

For the purposes of settlement of the pending legal proceedings challenging the Town’s approval of the Meadowmont Village Center and Infrastructure Special Use Permits, the Council states that it sees no present reason why the traffic calming devices along Pinehurst Drive, proposed by the petitioners and referred to in the July 1 letter from the Pinehurst neighbors’ attorney to the Mayor and Council, could not be implemented, subject to:

 

a.      Consideration of public input under the Council’s policies for receive and consideration of such input;

b.     Technical review of all such devices; and

c.      Availability of  private funding, including the previously pledged $75,000.

 

Absent significant public opposition from the residents of the surrounding neighborhood and assuming funding is available and technical criteria are met, the Council sees no reason at this time why the proposed traffic calming devices referred to in the July 1, 1998 letter would not be approved.  Moreover, the Council believes that consideration and implementation of the proposed traffic calming devices can proceed in a timely manner, following the settlement of the pending proceedings.  Assuming that settlement, along with financial and technical feasibility and public support as described above, the Council believes the devices can be installed prior to the opening of the Pinehurst connector and prior to any substantial development of Meadowmont.

 

2.     General Observations

 

The Council expresses its hope that the litigation arising out of the approval of the Meadowmont Special Use Permits can be resolved by settlement.  The Council urges all parties to the proceedings to work in good faith in an attempt to resolve their differences if at all possible.

 

The Council requests its attorney to meet with the other attorneys involved to seek resolution.  The Council believes it is necessary that the terms of any settlement should be made a public record.

 

This the 2nd day of July, 1998.