SUMMARY MINUTES OF A PUBLIC HEARING
OF THE CHAPEL HILL TOWN COUNCIL
TUESDAY, JUNE 26, 2001, AT 7:00 P.M.
Mayor pro tem Lee Pavão called the meeting to order at 7:00 p.m.
Council members present were Flicka Bateman, Joyce Brown, Pat Evans, Kevin Foy, Bill Strom, Jim Ward, and Edith Wiggins. Mayor Rosemary Waldorf arrived at 7:22 p.m.
Staff members present were Town Manager Cal Horton, Assistant Town Managers Sonna Loewenthal and Florentine Miller, Town Attorney Ralph Karpinos, Assistant to the Manager Bill Stockard, Current Development Coordinator J. B. Culpepper, and Town Clerk Joyce Smith.
Item 1 - Development Ordinance Text Amendment:
First Draft of the Development Ordinance
Town Manager Cal Horton pointed out that the Draft Ordinance had been posted on the Town's website and was available for review at the Town Library and at Town Hall. He said that there was plenty of time left for anyone who wanted to comment on it and stressed that the staff would welcome review by citizens throughout the summer.
Town Planning Director Roger Waldon noted that the Town Council had recently held a work session and hearing on an annotated outline of the Development Ordinance and that tonight's public hearing was to present the first draft of that Ordinance for review by advisory boards and others. Mr. Waldon said that any and all reactions would be helpful as the consultant and staff work toward a second draft, which they intend to bring to the Council at a September 19th work session. He explained that another public hearing would then be held and that the goal was to adopt a new Development Ordinance in late October or early November.
Mr. Waldon stated that tonight was an opportunity for advisory boards and citizens to talk with the consultant and the Town Council and to ask questions. He noted that inclusionary zoning might be a topic of conversation, for example, as well as the Small House Ordinance, the effective date, and how the new Ordinance would impact applications already underway.
Mark White, a consultant with Freilich, Lietner & Carlisle, emphasized that the Draft Development Ordinance was "truly a rough draft." He urged Council members to look at it as a menu from which not everything needed to be ordered. Mr. White explained that some things might be eliminated and others might be changed, making the document shorter at completion. After reviewing the Draft Ordinance's structure, Mr. White said that the purpose was to address issues that come before the Council again and again and/or things that the Town wants to encourage, such as vertical mixed use and traditional neighborhood development. He added that the intent was to catch these issues early in the process by means of a user-friendly format.
Mr. White explained that he would focus his presentation on Articles 2, 3, 4 and 5 because they reflect the primary policy issues that must be made in going forward.
· Article 2 - Use Patterns. A package of design templates to consolidate regulations pertaining to patterns of development, which occur within Chapel Hill. Mr. White explained that these include unique projects that the Town would like to encourage or projects that typically come before the Town, such as conventional subdivisions. Mr. White pointed out that these are not zoning districts but design packages.
· Article 3 - Zoning Districts. Mr. White explained that this Article addresses use regulations, dimensional regulations, and adds several new concepts, such as incentive zoning and inclusionary zoning. He noted that the Overlay Districts include new sections and that there are new materials in the Airport Hazard Districts. This Article includes changes in resource conservation, stratification of the buffer zone in a more realistic way, and a Neighborhood Conservation District that would protect the scale and character of the older in-town neighborhoods, Mr. White said. He pointed out that incentive zoning creates inducements for developers to do the right thing, such as providing affordable housing, including more than the required amount of parks and open space, and redeveloping parking lots.
· Article 4 - Procedures. Mr. White explained that this tells landowners how to go about getting a permit. He said the major change is that it includes early Town review of concept plans to avoid problems from arising later on.
· Article 5 - Design and Development Standards. Mr. White noted that this Article includes four major new sections: adequate public facilities; parking and loading maximum requirements; incorporating best management practices; and, a connectivity requirement in the Access and Circulation section of the ordinance.
Mr. White invited questions regarding issues, guidance from the Town, and discussion of what the next steps in the process would be.
Weezie Oldenburg, Community Design Commission Chair, reported that the CDC had not yet taken formal action on the Draft Ordinance but wanted to express their concerns regarding the parts that pertain to their work as an advisory board. Ms. Oldenburg questioned the recommendation to have all concept plans reviewed by the Council rather than the CDC. She said that the CDC is uniquely structured to conduct a review of a project in its infancy because of the high level of expertise and focus among its members. Ms. Oldenburg agreed that it was important for the Town Council to have early input, but argued that it works best if the CDC first reviews the concept plan.
Ms. Oldenburg noted that if the Council does conduct a concept plan review without recommendation from the CDC, then it would be important that recommendations to the applicant do not tie the hands of advisory boards as a project goes through the review process. She urged the Town Council to take a flexible approach to the concept plan, which she pointed out is an important part of the process for both the developer and the design review process.
Ms. Oldenburg stated that another important part of the CDC's work—review of final elevations and lighting plans—was specifically listed as one of their responsibilities. She suggested substituting "final elevations and lighting plans" for "a review of schematic building designs" on #19 on page 8-11. She also asked that some reference be made to their approval of alternative buffers. Ms. Oldenburg said that the CDC would present its full comments in writing in August.
Dorothy Verkerk, speaking for the Bicycle and Pedestrian Advisory Board, explained that the Board was studying the Development Ordinance and hoped to have something to the Council in writing in July.
Catherine Frank, Historic District Commission Chair, explained that the HDC had met to discuss the Draft Ordinance and had some reservations about it. She said that they were concerned about the potential overlap and conflict between the regulations of the HDC and the Planning Board's review of site plans. Ms. Frank commented that in other towns the more restrictive board, usually the HDC, is the one that prevails when there is a conflict. She suggested that this be included in Chapel Hill's Development Ordinance. Ms. Frank stressed that this was not a "turf war" but that the HDC does sometime catch applicants between the Planning Board's regulations and their own. She also asked that there be more specific references to the HDC's design review guidelines as a standard.
Ms. Frank said that the HDC continues to be concerned about the possibility of allowing reconstruction of nonconforming buildings and hoped that language would be added to the Ordinance regarding that. She recommended adding language about the HDC design review process in the section about new construction of subdivisions in existing or traditional neighborhoods.
Gay Eddy, Planning Board Chair, noted that the Board had only one chance to discuss the Draft Ordinance. She said that they had come up with twenty-five questions, however, which they had provided to the Council in writing. Ms. Eddy explained that the Board would discuss the Ordinance again on July 17th, and hope to have a more formal recommendation completed by the fall.
Aaron Nelson, Director of the Chapel Hill/Carrboro Chamber of Commerce, resubmitted key issues that the Chamber had previously asked to have included in the Development Ordinance. He asked Council members to address whether this ordinance was less adversarial and divisive than other efforts and whether it depoliticizes the process in appropriate ways, specifically for small projects. Mr. Nelson stressed that having specific deadlines for developers, such as Cary has in its development ordinance, would be extraordinarily helpful. He noted that once this Ordinance is passed it will be important that those applications already in the pipeline be given sufficient time to make it through without having to make revisions to comply with the new Ordinance.
Blair Pollock, representing the Lake Ellen Homeowners Association, discussed the erosion and sediment portion of the ordinance, noting that everything the Town has done to date has not worked to alleviate these problems. He suggested that Council members raise the standards, review some hardware that has been favorably reported on in the "Journal of Stormwater Management," and reduce to 8,000 square feet the size of developments subjected to rigorous erosion controls. Mr. Pollock recommended that Council members visit the Lake Ellen area to see the consequences of meeting the letter of the law but falling short of the standards that everyone hopes to achieve.
Developer Anne Stoddard recommended moving more toward a site plan approval process and away from the quasi-judicial SUP process because it would enable developers to sit down with members of Council to address concerns. This, she said, would reduce the adversarial nature of the process. Ms. Stoddard also supported Ms. Oldenburg's statement about concept plan review and noted that the CDC had made many good suggestions that her firm had adopted. She suggested that developers be required to demonstrate in a tangible way that they had met CDC recommendations. Ms. Stoddard also urged the Council to delegate more to the Town staff.
Phil Post, representing the Government Relations Committee of the Chapel Hill/Carrboro Chamber of Commerce, commented that the Town's Design Manual contains useful information, regarding parking for example. He wondered if the Town would need to be highly restrictive and dogmatic about parking requirements if it addresses the runoff issue through watershed protection.
Mr. Post suggested moving some issues, such as parking, into the Design Manual rather than making it so prescriptive in the Ordinance. He said that this applies to some of the subdivision requirements as well. Mr. Post argued that some of the highly prescriptive requirements may not be met in the real world and suggested that some of them, such as parking, connectivity and block length, be put in the Design Manual where there is a greater degree of flexibility to interpret.
Mr. Post noted that some concepts had not really been fleshed out in the Draft Ordinance. He commented that there will be much more detail required and that "sometimes the devil is in the details." Mr. Post wondered if it would be possible to get quick feedback on concept review if that becomes the Council's area. He suggested that if the Council does elect to review concept plans that they use the same method that the CDC uses, which is to review in the same month that it is submitted. Mr. Post noted that it would take at least six or seven months to do the training and to develop the forms and all the other things that will be required to create a working process. He urged Council members to include a substantial period for training and for absorbing the Ordinance into community life if they decide to adopt the Ordinance.
Regarding Article 2, Council Member Foy asked if use patterns were like performance standards.
Mr. White replied that they were in a sense, but that they were more prescriptive and numeric and designed so that a property owner and the administrative agency could look at them and know what the outcome would be. Council Member Foy asked if an applicant would come in and ask for a rezoning or if the Town would zone it first. Mr. White replied that each use pattern had a different procedural vehicle.
Council Member Evans stated that the document would benefit by some cross-referencing. She added that there were some things included in it that the Council had not enacted and others omitted which should be included, such as O&I-4.
Council Member Strom expressed concern about the erosion issues that Mr. Pollock had raised. and asked Mr. White if there was a way to get at a more prescriptive result. Mr. White replied that his firm's engineering sub-consultant had been working with the Town's engineers on this issue. He said that they were well-versed in low impact development design and had been looking at how to incorporate best management practices. Mr. White added that they would also confer with the University on stormwater management issues.
Council Member Strom, noting that the Draft Ordinance did not mention a total percentage disturbance in the Resource Conservation District (RCD), asked if that might be an alternative approach. Mr. White replied that he could give the Council a lists of alternatives. He said that a three-tiered buffer, somewhat like Charlotte had used, is an approach that works well and that the engineers were exploring. Mr. White noted that each zoning district has an impervious surface ratio, which applies to driveways and parking lots, as well as the typical coverage requirement. He added that the North Carolina Department of Environmental Quality outlines a standard performance approach, which limits discharges and sediment and lets the landowner decide whether they want a vegetative buffer with some impervious surface or just to limit their impervious surface. Mr. White offered to share information on that approach with the Town Council.
Council Member Strom expressed concern that at some point the waivers would exceed the benefits of having an RCD. He requested some discussion in the Ordinance of a maximum percentage of disturbance within the RCD, or at least some standard on the table to discuss. Mr. White asked if Council Member Strom was suggesting a hard standard that could not be varied at all. Council Member Strom replied that at some point if you allow enough waivers you really eliminate the benefit of having an RCD. He said that since this was a draft he'd like to examine that issue.
Council Member Brown inquired about the issue Mr. Pollock had raised about exposing the amount of land. Mr. White replied that the Draft Ordinance should include impervious ratios that apply within each zoning district. He said that Council members' comments indicated that they want the RCD included in that and that they might want a much smaller impervious surface ratio in the RCD than in other zoning districts.
Mr. Waldon interjected that the present discussion was about two issues (the permanent situation, and what happens during construction) that are regulated in different ways. He explained that they were currently discussing the permanent condition whereas Mr. Pollock had raised concerns about what happens during construction. Mr. Waldon pointed out that this involves a different set of regulations, which are not part of the Development Ordinance. But, he said, these issues can be folded together.
Regarding "streets, bridges and other similar transportation facilities" in the RCD section, Council Member Brown asked that the language be strengthened to show that there is absolutely no other available land. She asked if there were standards for air quality, and asked to look at ways of incorporating energy standards. Council Member Brown also asked to see how developments fit into the overall water and sewer capacity, if possible, and to look into water and sewer from the standpoint of drought. She asked that the use of indefinite words, such as "sprawl," be avoided. Council Member Brown also suggested thinking about having different standards for different sections of undeveloped land. She asked that the map showing those undeveloped parcels be updated.
Council Member Bateman asked for a brief overview of the inclusionary zoning section, and asked if the current Small House Ordinance was incorporated in it. Mr. White said that the inclusionary zoning section starts of page 3-50 and that this draft probably was the most aggressive version of an inclusionary zoning ordinance. He noted that it would kick the requirements in at the discretionary approval stage, such as rezoning or some sort of quasi-judicial permit. Mr. White added that he did not know that it could get any stricter than this in terms of applicability.
Regarding the second section, Mr. White suggested deciding what the target income is. He explained that in most ordinances the set-aside requirement for persons building any kind of development is larger as you go up the income scale. He pointed out that it requires a much deeper subsidy by the developer to provide housing for lower income households and so the profit margin gets smaller. Because of that, Mr. White explained, most ordinances have a much smaller set-aside requirement for very low income and a much larger requirement for moderate income. He noted that this varies throughout the country, adding that Davidson County was the only area in North Carolina currently looking at that. Mr. White explained that this approach is primarily used in states like New Jersey, where the Supreme Court mandated that every local government make room for low income housing in their zoning regulations. He said that the typical range is from 10-15% to 20-30%.
Mr. White explained that once a developer sets aside their units, the task is to make sure that they stay affordable over time. He stated that most communities have a "control period," which is enforced through covenants, rights of first refusal, or a development agreement so that those units stay affordable. The control period, Mr. White said, ranges from 30 to 50 years.
Council Member Bateman verified with Mr. White that the Town would have the option of doing this at all three levels. Mr. White commented, however, that it was safest to do it at the discretionary stage. He added that this falls into a gray area in terms of statutory authority but that cases in North Carolina have given the Town Council very broad authority in this respect. Mr. White remarked that although inclusionary zoning is a defensible concept the Council would be safer imposing it at the discretionary stage. He pointed out that it could be written into the Development Ordinance, and Council Member Bateman confirmed that the same could be done with the Small House Ordinance if the Council was interested in that.
Council Member Strom said that he would be interested in finding a way to make the Small House Ordinance last longer than the first year and to prevent the second floor space from being expanded on day 366.
Council Member Ward suggested that Mr. White explore all the opportunities for implementing payment-in-lieu in areas beyond parks and recreation. He also asked Mr. White to add "bicycle" everywhere that "pedestrian" was written.
Mayor Waldorf said that she was pleased to see the concept of transit-oriented development being incorporated. She asked, though, for more amplification of what its goals might be and how it might be applied. Regarding the commercial retrofit section on page 2.34, she pointed out that the Town might have to worry about height limits.
Regarding page 3.5, Mayor Waldorf asked whether the large number of references was to verify that mixed use does indeed reduce traffic. Mr. White replied that they were studies that document that it does, and Mayor Waldorf thanked him for that helpful documentation. On page 3.23, she noted that playing fields were not listed under permitted uses and suggested that the Council discuss whether or not they want playing fields in the RCD. Mr. White replied that playing fields would be permitted as long as they do not require fertilizers, pesticides, fences, or walls.
Council Member Ward suggested that the section be made clearer.
On page 3.42 (TC1 and TC2) Mayor Waldorf referred to the bottom left of column A of the dimensional matrix, and noted "maximum building height primary, maximum building height secondary" for the Town Center. She wondered if those were the existing height limits, adding that Council members should discuss what ought to be the height limits of the Downtown because this was an important policy decision for them to make as they consider this Ordinance.
Mayor Waldorf determined that incentive zoning as written applies to all zones. She asked if "within the immediate area" in the payments-in-lieu section at the top of 5-23 was really what the Council wanted to say or whether it would be better to divide the Town into quadrants.
Council Member Ward agreed that the language sounded prohibitive and that the Town needs flexibility.
Regarding Downtown parking, on page 5-25, Mayor Waldorf noted that the Town Council should have a significant discussion about this and figure out what they need to do in the future. She suggested public and private cooperation on this and said that merely repeating what was in the old ordinance would not be sufficient.
Regarding page 6-4, Mayor Waldorf recommended retaining the requirement that service stations be a certain distance apart.
Council Member Bateman inquired about incentive zoning, which might relieve the developer of certain stipulations. She asked if that was the purpose of the incentive zone. Mr. White explained that it had been written this way because in the past the section on incentive zoning was rarely used. He emphasized that to make it work the Town has to ensure that incentives are meaningful. Mr. White pointed out that density is often not enough and that the Town needs to look at permit streamlining, setbacks, parking, and even things outside the ordinance that will induce developers to do these things. He suggested that the dialogue this summer be about what numbers neighborhoods are willing to accept in terms of increased density versus what is meaningful. He also recommended discussing what would give developers a greater profit than they would have had if they had developed conventionally.
Council Member Bateman said that there had been instances when the Town Council would like to have exempted or not required a certain stipulation that was in the Development Ordinance but could not do so because of the Ordinance itself. She asked if this would be the case if the Town has a Development Ordinance with a Design Manual in it. She asked if incentive zoning would give the Town the flexibility to say, on a case-by-case basis, that this would be one stipulation that we will not require, or would they again go in a circle and accomplish nothing. Mr. White agreed to look at that with the goal of adding language that would give the Council that authority if the Ordinance does not do so as it is.
Mayor Waldorf thanked Mr. White, adding that the Ordinance was a step forward in terms of readability.
COUNCIL MEMBER WARD MOVED, SECONDED BY MAYOR PRO TEM PAVÃO, THAT THE COUNCIL GO INTO CLOSED SESSION, AS AUTHORIZED BY NORTH CAROLINA GENERAL STATUTE SECTION 143-318.11A3, TO CONSULT WITH THE TOWN ATTORNEY ON MATTERS INVOLVING THE ATTORNEY-CLIENT PRIVILEGE AND POTENTIAL LITIGATION. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
Council Member Evans pointed out that the Council had not referred the advisory boards' and citizens' comments to the consultant. Mayor Waldorf verified with the staff and the consultant that those were assumed to be referred.
The meeting adjourned at 8:23 p.m.