SUMMARY MINUTES OF A PUBLIC HEARING

SUMMARY MINUTES OF A PUBLIC HEARING

OF THE CHAPEL HILL TOWN COUNCIL

WEDNESDAY, OCTOBER 16, 2002, AT 7:00 P.M.

Mayor Kevin Foy called the meeting to order at 7:00 p.m.

Council members present were Pat Evans, Ed Harrison, Mark Kleinschmidt, Bill Strom, Dorothy Verkerk, and Edith Wiggins.

Council Member Jim Ward was absent, excused.

Council Member Flicka Bateman arrived at 7:35 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, Planning Director Roger Waldon, Planner Than Austin, Principal Planner Gene Poveromo, and Town Clerk Joyce Smith.

Mayor Foy announced that Council Member Jim Ward was attending a Schools and Land Use Council meeting. He said Council Member Ward will review the tape and offer comments at a later date. Mayor Foy added that Council Member Flicka Bateman was attending a Parks and Recreation Commission meeting and would arrive later in the evening.

Item 1 - Proposed Rezoning of Colonial Heights and Pinebrook Estates Areas:

Zoning Atlas Amendment

Senior Planner Than Austin displayed an area map and reviewed the proposal to rezone Colonial Heights and Pinebrook Estates from R-2 to R-1. He noted the additional proposal to rezone an intermediate district as well. Mr. Austin explained that the area included about 229 lots. He pointed out that R-1 requires larger minimum lot sizes and does not permit duplexes, except for those created prior to 1983, which would include most of these lots. He listed the three justifications for a Zoning Atlas Amendment:

1. To correct a manifest error,

2. Because of changed or changing conditions in the area or jurisdiction, and

3. To achieve the purposes of the Comprehensive Plan.

Mr. Austin stated that this proposal meets the third criterion, adding that the Planning Board had recommended approval of Resolution A to rezone Colonial Heights and Pinebrook Estates to R-1.

Scott Radway, representing the Planning Board, reported that the Board had voted (7-1) in favor of Resolution A.

Colonial Heights resident Michael Collins pointed out that tonight's hearing was the result of a petition from 159 residents from the 50+ year-old neighborhood. He thanked the Manager, the Planning Department, and the Town Council for their efforts on the neighborhood's behalf. Mr. Collins noted that the area had been identified in the Town's Comprehensive Plan as one that was susceptible to change. He listed several events that had occurred recently in his neighborhood:

· Closing and reopening of the Horace Williams Airport

· A permit issued for a nearby three-story duplex

· A proposal to widen Estes Drive

· A UNC park and ride lot expansion

· Discussion regarding a nearby hazardous waste site

· Conversion of several single-family residences into rental housing

· The University’s plan to locate grounds and maintenance facilities on adjacent land

Mr. Collins described the wide variety of people who live in his neighborhood and said he defied anyone to show him another Chapel Hill neighborhood with more professional, economic or demographic diversity. This neighborhood must remain predominantly single-family residential, he said, and asked Council members to vote in favor of that.

Pinebrook Estates resident Susan Morris also requested rezoning from R-2 to R-1, noting that 90 of the signatures on the petition were by Pinebrook homeowners. She asked that these neighborhoods be rezoned to protect them from the pressures of being located between UNC and the Horace Williams property, which will become Carolina North. Ms. Morris described her neighborhood as a very attractive target for infill and subdivision by developers who are insensitive to the people and wildlife that live there. She requested that the Council adjust the zoning to reflect what is there, which is single-family homes on densely wooded lots ranging in size from one half to one acre. Ms. Morris noted that accessory apartments would still be permitted under R-1. She pointed out that this allows the neighborhood to continue offering housing to students and others.

Ms. Morris described a nearby three-story duplex as a reminder of what can happen if the neighborhood is not rezoned. She stated that the proposed changes were in accordance with the new Land Use Management Ordinance, which lists neighborhood conservation as one of its guiding principles. There is also supporting language in the Town's Comprehensive Plan, she said, adding that a major theme of the Comprehensive Plan is to conserve and protect the physical and social fabric of existing neighborhoods. Ms. Morris asked Council members to expedite the rezoning process allowing Pinebrook to be designated as an R-1 traditional neighborhood.

Colonial Heights resident Amelia Collins read part of a News and Observer article about three vegetarian families who live in her neighborhood. She commented that hers was one of those families and described her 50 year-old neighborhood as "magical." Ms. Collins spoke against subjecting the area to the kind of "unplanned densification" that she said had torn other neighborhoods apart. She asked Council members to help the neighborhood remain the way it is by voting for the proposed zoning change to R-1.

Margaret Morse, speaking for residents of Elkin Hills, expressed support for what the previous speakers had said in favor of rezoning to R-1.

Mayor Foy explained that the Council would not take any specific action on this item tonight but would refer all comments to the Town Manager and Town Attorney to come back for a Council vote on November 11^th.

Council Member Kleinschmidt asked what "nonconforming" means for lots indicated on page three of the Manager's memo. Town Planning Director Roger Waldon explained that if the rezoning takes place and the minimum lot size is raised then there will be more than a few lots in this neighborhood that are below the minimum lot size, and therefore nonconforming. Mr. Waldon remarked that this did not mean much for these property owners, except when the owner also owns two adjacent vacant lots. In that case, he said, the owner might be required to combine them into one lot.

Council Member Strom asked if the Town had received any expressions of concern from owners of lots that might be affected this way. Mr. Waldon replied that the neighborhood had expressed overwhelming support for rezoning and that he could not recall any objection. Mr. Horton agreed, but offered to review mail and email to make sure.

Mayor pro tem Evans stated that she had difficulty in the past getting a mortgage for a house on a nonconforming lot. She wondered if this would still be the case and if being nonconforming would make it difficult for people to sell their property. Mr. Waldon replied that he had received a wide variety of comments and anecdotal information on that topic but had no definitive information. Mayor pro tem Evans requested that the staff check on that. Mr. Horton offered to have representatives from each bank comment.

Council Member Harrison asked how many of the nonconforming lots were unbuilt. Mr. Waldon replied that if the rezoning to R-1 were to take place then 35 lots would become nonconforming. Most, if not all, he said, have structures on them. Council Member Harrison asked what could be done under R-1 with an unbuilt lot that becomes nonconforming. Mr. Waldon replied that the owner could put a house on it. He pointed out that duplexes and single-family houses with an accessory apartment are the two kinds of two-family dwellings and nearly every lot in Chapel Hill is available to have an accessory apartment. Mr. Waldon added that a single-family dwelling could be built on any of these lots and accessory apartments could be constructed as well. Council Member Harrison asked if rezoning would still allow nonconforming lots to be built with an accessory apartment. Mr. Waldon replied that it would depend on the size, and offered to check on that.

Council Member Wiggins suggested that the staff make sure that banks understood the Town's three definitions of nonconformity (lot, use, and feature) when asking them about mortgages.

Council Member Verkerk asked what would have to happen for the second criterion (change or changing conditions in the area or jurisdiction) of the Comprehensive Plan to be the reason for rezoning. Mr. Waldon replied that the change or changing conditions would have to be drastically different and unanticipated. Mr. Horton noted that only one justification is required. He said that he had chosen the one that he thought was clearest, strongest, and "unassailably correct."

COUNCIL MEMBER KLEINSCHMIDT MOVED, SECONDED BY COUNCIL MEMBER STROM, TO REFER COMMENTS TO THE MANAGER AND ATTORNEY AND RECESS THE PUBLIC HEARING TO NOVEMBER 11, 2002. THE MOTION WAS ADOPTED UNANIMOUSLY (7-0).

Item 2 - Public Hearing on Development Ordinance Text Amendment

for Signs Posted on Utility Poles

Mr. Waldon pointed out that this pertained to two different but related actions. The Development Ordinance deals with how land is used, while the Code of Ordinances tends to address behavior, he said. Mr. Waldon pointed out that both would need to be changed to allow signs to be posted on utility poles. He explained that a citizen had brought a petition asking the Town to repeal its regulations prohibiting signs on wooden utility poles. Mr. Waldon explained that this is an appearance issue, and offered five options for the Council to consider:

1) No Changes to Current Regulations

2) Eliminate Prohibition in Town Center

3) Eliminate Prohibition Townwide

4) Maintain the prohibition, eliminate penalty

5) Provide Additional Kiosks

Scott Radway, speaking for the Planning Board, reported that the Board had recommended (6-3) to place a new exemption for paper signs, no larger than 11 x 17, that are fixed to a utility pole and are not wider than the diameter of the pole. He said they had recommended easing that restriction Town-wide. Mr. Radway added that his was one of the opposing votes and that he supported the staff recommendation. He said the Board had also discussed the issue of appearance versus freedom of speech in a college town.

Council Member Strom asked why the Planning Board had voted for option #3 rather than #2. Mr. Radway replied that an ideological discussion of speech and communication had concluded with "why not extend it Town-wide." Board members had all seen signs in neighborhoods, he said, and none could think of a time when it had been a problem.

Steve Cruise, the Triangle Area Manager for Duke Power Company, expressed concern about the possible repeal of the ban. He said that most of the poles were the property of Duke Power, BellSouth and Time Warner Cable, and requested that they remain unencumbered. Mr. Cruise said that this was for pedestrian and employee safety as well as reliability. Over time, he explained, the practice of attaching signs degrades the wood, which accelerates the need to replace the poles and can interrupt electric service. Mr. Cruise argued that banning, though difficult to enforce, does deter some people from placing the signs.

Stewart Barbee, who is responsible for maintaining workplace and worker safety at Duke Power, said that nails and staples from flyers pose a potential danger to lineman climbing poles. He demonstrated the "climbers" that linemen wear on their legs and pointed out the sharp spikes at the heels which penetrate the pole by 1/2-inch to 5/8-inch as they climb. Mr. Barbee explained that metal objects, such as staples, can damage the end of the climber and prevent it from properly penetrating into the wood. Then the climber might "cut out," he said, causing the lineman to fall. The lineman's reflex would be to grab the pole, said Mr. Barbee, and sliding onto the tacks and staples would tear the lineman's skin. Because of this, the poles need to be cleared before lineman can climb them, he explained, and this can be time-consuming and expensive. Mr. Barbee submitted a petition from employees regarding their concerns about climbing utility poles that have had flyers tacked to them.

Robert Humphreys, speaking for the Chapel Hill Downtown Commission, asked Council members to continue respecting the rights of all property owners in the community. He requested that they protect those rights to the extent possible by legislation and not allow the public to place posters on other people's property. Mr. Humphreys suggested that allowing this could lead to other kinds of advertising littering the Town as well. He noted that the Downtown Commission had designed a kiosk as an alternative to posting flyers on buildings and poles. Kiosks had served the Town well for many years, Mr. Humphreys said, adding that the new one was made of steel. He asked Council members to let the kiosks do their job and let the poles do theirs.

Erik Ose, noting that he was the petitioner who requested that the posting of notices on utility poles be allowed, said that another 200 signatures had been added to his petition since the spring, making it a total of 1,200 signatures. Mr. Ose argued that an ordinance prohibiting signs might have made sense in 1925, when the Town was a small village, but flyers are now different from those original advertisements. The Town should not spend its resources arresting people who post flyers, he said, adding that Duke Power was asking the Town to spend tax dollars on keeping the poles clean. Mr. Ose suggested that Duke Power give something back to the community and allow posting on these signs. Most of Duke Power's linemen do not even climb poles these days, he said, but go up in cherry pickers. Mr. Ose argued that a pole covered with colorful flyers and exciting exchanges of ideas is more aesthetically pleasing than a bare pole with bits of torn paper on it.

Mayor pro tem Evans asked if lost pet signs were permitted. Mr. Karpinos replied that they were not. Mayor pro tem Evans inquired about the existing and proposed ordinance on sandwich boards. Mr. Waldon explained that those were permitted in the Town Center, with a size limitation and rules about them being changeable and moveable. Mayor pro tem Evans pointed out that small businesses could advertise that way.

Mayor pro tem Evans commented that Carrboro might permit signs on poles because they have no kiosk. She pointed out that there were four kiosks in Chapel Hill, and that four more would soon be installed, plus signs could be posted at the Post Office, and at restaurant entryways. Mayor pro tem Evans noted that newer neighborhoods will not have signs on utility poles because power lines will be buried. Allowing signs throughout Town, she said, would mean that most would be in the Historic District. Mayor pro tem Evans stated that producing and distributing flyers was a business, not just a grassroots movement, and that signs which are offensive to some could be placed all over Town. She also said that Downtown businesses had hired an individual to remove the signs each day.

Council Member Kleinschmidt wondered about the disadvantages of increased clutter that was noted within the options. Where would that increase in clutter be if the poles already were cluttered, he asked. Mr. Waldon replied that the poles were not completely covered with flyers and there probably would be an increase if posting were not illegal. Mr. Horton added that eliminating the prohibition or the penalty makes the increase predictable.

Council Member Kleinschmidt asked if the staff believed that most people knew this was illegal. Mr. Horton replied that the staff notifies violators of the law and asks them to refrain from violating it. They only cite an individual who refuses to obey the order, he said. Mr. Horton noted that this does have a deterrent effect on that person at that time.

Mayor Foy commented that it was a little ridiculous to have to go to court because you posted a sign. He noted, though, that it was desirable for the Town to be able to remove signs. Why not just make it a noncitable offense, as in options #4 & #5, he asked. Mr. Horton replied that those were reasonable options for the Council to consider. He added that Mr. Ose might have been the only person taken to court over this matter in many years.

Council Member Harrison asked the staff to bring back information about Carrboro's and Durham's regulations, and also on the cost of the new steel kiosk. He said that he likes seeing signs around Town and is pleased that there will be more kiosks.

Council Member Strom thanked the staff for the work that they put into this issue. He noted that each person interprets this based on his/her subjective response to the environment. Council Member Strom said that he, too, prefers seeing a decorated post which reflects the Town's vitality.

Item 3 - Public Hearing on Special Use Permit Application for

Village Plaza Shopping Center Renovation

Mr. Horton remarked that this Special Use Permit (SUP) was more complicated than many that come before the Council. The development is seamless in appearance but involves multiple properties, he said.

Senior Planner Gene Poveromo displayed an area map of the 10.8-acre site along Elliott Road. He said the site includes two structures, totaling 94,000 square feet of floor area and 436 parking spaces. Mr. Poveromo explained that the applicant had proposed developing the site in two phases. First, he said, a new movie theater and outbuilding; then, an office and pedestrian plaza.

Mr. Poveromo listed the key issues, which are modification of regulations, parking, floor area, livability space, and landscape buffers. He explained that, with its stipulations and modifications, the application complies with the standards and regulations of the Development Ordinance.

Richard Gurlitz, of Gurlitz Architectural Group, thanked the Town Council on behalf of the owners, Eastern Federal, for the expedited review of this project. He summarized the project's history, noting that the Community Design Commission had requested mixed use on the site and that residential use had been requested as well. Eastern Federal agreed to do all of that, Mr. Gurlitz said, because what they really want is to develop the movie theater. He explained that Resolution A asks for permission to build the theater and then to come back at a specified time and comment on building office or residential space. Eastern Federal is flexible, Mr. Gurlitz said, but does not want to be forced into building something that is not market appropriate.

Developer Dan Jewell expressed agreement with all of the stipulations in Resolution A. He pointed out the sidewalk connection along Elliott Road and the pedestrian bridge to the greenway trail. Mr. Jewell explained that 87 bicycle spaces would be scattered throughout the site, to further promote use of the greenway trail. He said that they had increased the amount of square feet in the building and decreased the amount of paving. They were able to increase the number of parking spaces, he said, because parking had previously been inefficiently laid out. Mr. Jewell also noted the decrease and improvement in stormwater runoff, the park and ride spaces, the improved bus stops, and the improved landscaping of the site.

Council Member Harrison and Council Member Bateman noted that the designated park and ride area was already being used for that purpose.

Scott Radway, representing the Planning Board, noted that the Planning Board had submitted both a summary of action and the usual recommendation form. He praised the staff for thoughtfully addressing all of the advisory boards' comments and the changes that had been made throughout the process. The Planning Board had recommended Resolution B, he said, which varied slightly from the Manager's recommendation by not ruling out an option for residential. Mr. Radway commented that the Planning Board might have inquired about using the theater's parking lot for Wellspring's overflow parking if it had been aware of the problem prior to tonight.

George Jones, of Wellspring Wholefoods Market, described Wellspring as a solid partner with the community for 12 years. He noted that the store had extended its commitment to the current location by extending its lease, making $8 million worth of physical improvements, and expanding within the space currently available to them. Mr. Jones expressed concern about the lack of parking and the potential impact that this could have on business. He said that Wellspring had made a commitment to the area knowing that parking was not optimal, but they had no idea that such potential imbalance was possible. Mr. Jones described the current lot situation as perilous, due to too much traffic and too little parking.

Jim Groot, owner of Red, Hot & Blue, expressed concerns about parking. He noted that the goal of a 1,587-seat theater is to fill those seats. If they are filled on a weekend night, he said, that would be a problem because there will be no space for people to park. Mr. Groot referred to traffic problems at a Cary theater, and stated that Phase II would increase the potential for conflict.

PTA Thrift Shop director Elizabeth Webber explained that the shop is totally dependent on people driving there to give donations, to shop, and to work. She said that they had lost donors because people did not want to drive an extra mile to a new drop-off site. Ms. Webber pointed out that the Wellspring Shopping Center was the only one in Town that was willing to have the Thrift Shop as a tenant. She asked the Council to think about both parking and traffic issues.

Council Member Verkerk determined from Mr. Horton that the park and ride spaces would be available to anyone who wished to use them. She also verified that there would be a time limit (6 a.m. - 6 p.m./Monday-Friday) for using them. Council Member Verkerk asked for examples of other similar shopping centers, and Mr. Horton offered the Timberlyne Shopping Center as an example.

Council Member Harrison asked if there had been any thought given to doing a midday on Saturday parking count. Mr. Poveromo replied that the staff had asked for a survey but had not put any conditions on it. Council Member Harrison inquired about making the parking lot available for others, such as the Wellspring employee that he met driving to the satellite parking lot. Mr. Gurlitz replied that there were no such formal agreements, but that this SUP would establish some. Regarding the survey, Mr. Gurlitz explained that Eastern Federal had only counted spaces at times when movies would be operating. They had not been given directions to do otherwise, he said.

Council Member Harrison stated that a cyclist in this climate would want covered parking distributed near the businesses. Mr. Poveromo explained that the Town's Design Manual suggests a certain percentage of class I and class II bicycle spaces. Class I, in this case, he said, would require 18 to be located in an area that is either secured, has a locker space, or is indoors and protected from the elements. Mr. Poveromo added that the Design Manual recommends that class II spaces be provided in an area that is covered, protected, and well lit, but there is no specific requirement. He noted that the applicant might agree to cover and protect some of the class II spaces from the elements, even though it is not required.

Mayor pro tem Evans asked for information about the frequency of bus service to the area at night. After determining that property between the creek and Fordham Boulevard was part of this parcel, she asked if the Town could require that sidewalks be built. Mr. Horton noted that there would be a connection to the sidewalk that Mayor pro tem Evans was proposing. She pointed out that the Town had limited funds for sidewalks and that one way of getting them is through applications such as this one.

Council Member Bateman requested that a parking count be done midday on a weekend.

Mayor Foy asked for a clear analysis of how shopping center residents are dependent on each other's parking. He asked, for example, if there was a right to use the other's lot, or just an expectation. Mr. Horton agreed to review the permits that apply to each of the properties. He predicted that the Town would find nothing that formally requires sharing of parking even though there is a tradition of doing that.

Council Member Kleinschmidt wondered if there was a way to find out how much of the Wellspring parking was spilling over into the theater area. Mr. Horton said that this would depend on observers watching where people go after parking their cars. The applicant probably would do his best to get that difficult information, he said.

Council Member Harrison asked when the Town would complete the Bolin Creek Trail and the sidewalk on Fordham Blvd. Assistant Town Manager Sonna Loewenthal replied that the trail would be completed in about 18 months. The NC Department of Transportation (NCDOT) has the sidewalk design, she said, and when it is returned it will go out for contract. Ms. Loewenthal added that the sidewalk would run from Willow Drive to Days Inn.

Mayor Foy asked, regarding the Phase II building, if the underground parking situation would be like that at South Square Mall. Mr. Gurlitz replied that it would be smaller than South Square and would have only one lane of parking. He said that it would be more like Willowcrest.

Mayor Foy inquired about retail on the southwest facade. Mr. Gurlitz explained that the applicant preferred his own retail to a separate tenancy that would introduce a host of operational issues.

Mayor pro tem Evans, stating that the Town had a responsibility to help existing businesses, asked about options for overflow parking if that becomes a problem. She commented that people are unlikely to bicycle along busy roads.

Mayor Foy inquired about the parking area behind existing retail and Mr. Gurlitz replied that they might pick up about 20 more parking spaces there by substituting a compactor for dumpsters.

In response to a question by Mayor Foy regarding the outbuilding, Mr. Gurlitz explained that it might become an ice cream or coffee shop with outdoor eating. It would then be subject to a Community Design Commission exemption from a buffer, he said.

Mayor Foy noted a drainage problem in one area of the lot. Mr. Jewell replied that they would not do a wholesale grading there but that they could raise the catch basin and make improvements.

Council Member Bateman asked the applicant to ask his client to reduce the number of theaters by four. This would cut down on the number of parking spaces needed, she said.

COUNCIL MEMBER STROM MOVED, SECONDED BY COUNCIL MEMBER HARRISON, TO SET CONTIGUOUS PROPERTY AT 1,000 FEET. THE MOTION WAS ADOPTED UNANIMOUSLY (8-1).

A RESOLUTION DETERMINING CONTIGUOUS PROPERTY WITH RESPECT TO THE SPECIAL USE PERMIT FOR THE VILLAGE PLAZA SHOPPING CENTER RENOVATION (2002-10-16/R-1)

BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council, having considered the evidence submitted in the Public Hearing thus far pertaining to the application for the Special Use Permit application proposed by Eastern Federal Corporation and Triangle V II L. P. on property identified as Chapel Hill Township Tax Map 46, Block B, Lots 11 and 11B (PIN# 9799242361, 9799148584), if developed according to the site plan dated July 17, 2002 and site plans included as attachments and titled Additional Parking Lot Buffer hereby determines, for purposes of Development Ordinance Section 18.3, Finding of Fact c), contiguous property to the site of the development proposed by this Special Use Permit application to be that property described as follows:

All properties within 1,000 feet of the site.

This the 16^th day of October, 2002.

COUNCIL MEMBER STROM MOVED, SECONDED BY MAYOR PRO TEM EVANS, TO REFER COMMENTS TO THE MANAGER AND ATTORNEY AND RECESS THE PUBLIC HEARING TO NOVEMBER 11, 2002. THE MOTION WAS ADOPTED UNANIMOUSLY (8-0).

Item 4 - Proposed Rezoning of Parcel at Northern Intersection of

South Columbia Street/Old Pittsboro Road: Zoning Atlas Amendment

Mr. Waldon said this had come up during a review of the University's plans. The Town understood that UNC had no objection to the idea of rezoning the parcel on the west side of South Columbia Street from OI-3 to R-2 to match the Comprehensive Plan, he said.

Scott Radway reported that the Board had unanimously agreed with the Manager's recommendation.

Mayor Foy asked why R-1 would not be preferable to conforming to the adjacent land. Mr. Waldon replied that making it R-1 would be considered spot zoning.

MAYOR PRO TEM EVANS MOVED, SECONDED BY COUNCIL MEMBER STROM, TO REFER COMMENTS TO THE MANAGER AND ATTORNEY AND RECESS THE PUBLIC HEARING TO NOVEMBER 11, 2002. THE MOTION WAS ADOPTED UNANIMOUSLY (8-0).

The meeting adjourned at 9:32 p.m.